Alida J. Davis et al., Appellants, v. William S. Clark, Executor, etc., Respondent

Alida J. Davis et al., Appellants, v. William S. Clark, Executor, etc., Respondent. Under the Code of Civil Procedure (§ 1337), the decision of a surrogate upon a question of fact arising on conflicting evidence upon the final accounting of an executor is not reviewable here. The provision of said Code (§ 2586) declaring that: “ Where an appeal is taken upon the facts, the appellate court has the same power to decide the questions of fact which the surrogate had,” etc., has reference only to appeals from surrogates’ decrees or orders to the Supreme Court. (Argued October 28, 1881; decided November 22, 1881.) This was an appeal from a judgment of the General Term of the Supreme Court, which affirmed the decree of a surrogate upon the final accounting of an executor. The question was as to an alleged payment of $1,000 to a légatee. The evidence upon this question was conflicting; the surrogate allowed the payment claimed. The court here sáy: “Prior to the Code of Civil Procedure the decisions of surrogates in such cases were reviewable in this court upon all the evidence (Kyle v. Kyle, 61 E. T. 400), and this court could reverse the decision of a surrogate if against the weight of evidence ; but now this court has jurisdiction only to consider the evidence with the view of seeing if there is any evidence sufficieut to sustain the surrogate’s decision. Section 1337 of the Code of Civil Procedure provides that: cA question of fact arising upon conflicting evidence cannot be determined ’ upon an appeal to this court, unless special provision for the determination thereof is made by law. No such special provision as to appeals of this character has been made. Section 2586,. which provides that: ‘Where an appeal is taken upon the facts, the appellate court has the same power to decide the questions of fact which the surrogate had; and it may in its discretion receive further testimony or documentary evidence, and appoint a referee,’ has reference only to appeals from surrogates’ decrees or orders to the Supreme Court.” H. H. Wooclwa/rd for appellants. E. A. Wash for respondent. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance. All concur. Judgment affirmed.