SPOTTS against DUMESNIL

SPOTTS against DUMESNIL. Court of Appeals ; March, 1872. Appeal erom Surrogate’s Court.—Dismissal oe Appeal. An appeal from an order or decree of a surrogate is wholly ineffectual, if security for costs of appeal is not given, as required by 3 Bern. Btat., 610, § 108.* That requirement is not repealed, as to the county of New York, by the act of 1870. The court cannot relieve the appellant from the consequences of omitting to give security, † The provisions of the Code do not apply to such appeals. Appeal to the general term may be dismissed by motion at special term. *As to stay of proceedings in certain cases, see Laws of 1871, ch. 603. fAs to the form of the bond, and the power of the court to amend defects in it, see Marvin v. Marvin (11 Abb. Pr. N. S., 97), and see note at end of the present case. Appeal from an order. Henry A. Dumesnil was administrator, and Jane P. Spotts was administratrix of Harry I. Spotts. Henry A. made Ms separate final accounting, on wMch he had the report of an auditor ; and the surrogate of the county of New York, upon motion, and after hearing all the parties in interest, confirmed the auditor’s report, and made a decree of final settlement of the administrator’s accounts. Immediately after making that decree, but before it was filed or recorded, the surrogate, upon motion and statement of the number of days they had been engaged in and in preparing for the proceedings, made an order granting to the administrator and several of the other parties allowances for counsel, which the .administratrix was required to pay from and out of the moneys of the estate. On that same day the decree and order were filed and recorded separately. Thereupon the administratrix and distributees informed the surrogate that they intended to appeal to the supreme court; and, subsequently, though still in the month of April, the surrogate required that before any appeal should be taken from the order or decree, the appellant or appellants should first deposit, under his direction, the sums or amounts ordered, decreed and required to be paid by the order or decree intended to be appealed from. No steps whatever in reference to any appeal were taken until July 12, 1871, when the administratrix and distributees united in a notice of appeal to the supreme court from both the decree passing the accounts and awarding the commissions, and the subsequent order directing payment of allowances for counsel, which notice was that day filed with the surrogate. Immediately before filing that notice, and on July 12, there had been entered in the supreme court an order “In the matter of the guardianship of Albert T. Spotts,” one of the distributees, who had recently become of age. That order directed the United States Trust Company (the guardians) to, among other things, transfer from funds in their hands belonging to the estate, to the credit of the surrogate, as a special deposit, subject to the surrogate’s order, in the matter of the decree of April 12, &c., the aggregate amount, with interest from April 12 to July 12, of the sums by the surrogate’s decree and order required to be paid. To that clause in the supreme court order the attorneys for the several parties to this appeal had consented, the object of the clause being to enable the administratrix and distributees to comply with the surrogate’s order for a deposit before appealing. But that order was never served on the surrogate at all, and was not served on the Trust Company until July 14. The transfer and deposit to the credit of the surrogate, on the books of the company, was not actually made until July 15. No bond conditioned that the appellants would prosecute their appeals to effect, and would pay all costs that should be adjudged against them by the appellate court, was ever filed with the surrogate. On July 27 the petition of appeal from the surrogate was served. Upon it, and affidavits setting forth the facts above stated, and upon the proceedings in the surrogate’s court, Dumesnil and the others who were named as respondents in that petition, moved the court at special term (chambers) for an order dismissing the petition and the appeals, for several grounds of irregularity,—among them, that no appeal bond had been filed with the surrogate ; that the deposit required' by the surrogate had not been made until the time to appeal had expired ; and that the notice of appeal from the order respecting allowances should have been filed within thirty days after that order was made. The motion was opposed upon the grounds, among others, that it should have been made at a general term, and could not be entertained elsewhere ; that it was unnecessary to file any appeal bond with the surrogate ; that the clause of the Revised-Statutes formerly exacting a bond was repealed by Laws of 1870, ch. 369, § 12; that the consent to the order of July 12 was a waiver of the appeal bond, if any could otherwise have been demanded ; and that the decree of final settlement of the accounts was a final decree, and that the order for allowances, being entitled in the same matter, was properly treated as a part of the decree itself, and was, therefore, appealable three months after the decree was recorded. The motion in the supreme court was granted, the following opinion being rendered : Ingraham, J. J.—The The special term may entertain a motion to dismiss an appeal for irregularity. An order making allowances, separate from the final decree, is a mere order, to be appealed from within thirty days, and an appeal after that time is a nullity. The act of 1870 authorized the surrogate to require a deposit of money before appealing, and an appeal taken before such deposit was irregular. The appellant might have been relieved by the court, by allowing the deposit afterwards on terms. As such deposit was made in July, and as the right of appeal would be lost if the appeal is set aside, the latter appeal should be allowed to remain. The bond for one hundred dollars, as required by the Revised Statutes, should have been filed. That provision is not repealed by the act of 1870. The motion to set aside the appeal as to allowances is granted, with ten dollars costs. The motion to set aside the other appeal is granted, unless the appellant within five days file such bond and pay ten dollars costs additional. The administratrix and distributees' appealed to the general term from so much of the order entered on that decision as dismissed their appeal from the surrogate’s order respecting allowances. At the general term that portion of the order was affirmed, and the appellants thence appealed to this court. Joseph H. Dukes, for the appellants. Burton N. Harrison, for the respondents. I. In moving to dismiss, for irregularity, the appeals from the surrogate’s order and decree, the motion was properly made to the special term of the supreme court. They were not appeals in the supreme court, from the special term or circuit to the general term, which were moved to be dismissed : but appeals from an inferior court to the supreme court, not to the general term. The special term is the court, quite as much as the general term is the court; and, in the absence of a statute or rule requiring any particular motion, which should be addressed to the court, to be made elsewhere, it should be made at special term, of course. In the court of common pleas, when the appeal is under chapter Y. of the Code, an appeal from an inferior court to the court of common pleas, it is always held that a motion to dismiss on the ground of irregularity should be made at special term (Griswold v. Van Deusen, 2 E. D. Smith, 179 ; Williams v. Tradesmens’ Ins. Co., 1 Daly, 322; Irwin v. Muir, 13 How. Pr., 409; 4 Abb. Pr., 133). And that has always been the practice in the supreme court, upon appeals to it from inferior courts (Suffern v. Lawrence, 4 How. Pr., 129; and Bunnel v. Hays, unreported, but decided at special term in the first district, in 1869, and affirmed on appeal). The practice goes upon this ground,, among others, that such an appeal is by petition to the court, not to the general term, or to either other branch of the court; and that the proper place to make a motion in the first instance to dismiss a petition is at special term. In this case, the court passed distinctly on that matter, and decided the practice to be correct, holding that the special term may entertain a motion to dismiss any appeal for irregularity, as a general proposition. II. The question of regularity or irregularity of these appeals is to be decided without reference to any provision of the Code concerning appeals in civil actions, and neither this court nor the supreme court can exercise any discretion with reference to amendments, or corrections, which it gets the power from the Code to allow in an action (Schenck v. Dart, 22 N. Y., 422). That decision was made in 1860. There were then only the provisions of the Revised Statutes to determine the sufficiency of notices of appeals from the surrogate’s decrees and orders like those under consideration. They are 2 Bev. Stat., 610 (part III., ch. IX., art. 3, tit. III.), §§ 105, 107, 108. But, by the Laws of 1870, ch. 359, § 12, a new and very important element was introduced concerning appeals from the surrogate of Hew York county. Those provisions are not mere rules of court which can be disregarded ; they are all statutory requirements, which are inflexible, leaving nothing to the discretion of the parties, or of any court. They must all be strictly complied with by the appellant ; and neither the supreme court nor this court, sitting as an appellate tribunal, can afford any relief to the appellant who disregards either of them. That was the rule of practice in the court of chancery, to which, previous to the constitution of 1846, these appeals were taken, and it has never been changed (1 Barb. Ch. Pr., 425; Dayt. on Surr., 738; Bronson v. Ward, 3 Paige Ch., 189; Van Slycke v. Schmeck, 10 Id., 302, 303; Bank of Monroe v. Widner, 11 Id., 529). “Where the time for appealing is fixed by statute, if the appeal is not brought within the time allowed by law, the court can not extend the time, even upon an excuse shown, as the lapse of time in that case is an absolute bar to the appeal” (Caldwell v. Mayor, &c., 9 Paige, 572, per Chancellor Walworth, citing many authorities). “The power of the court respecting the case was exhausted ; and the plaintiff had an absolute right to the fruit of his recovery, of which it was not in the power of the court to deprive him” (Wait v. Van Allen, 22 N. Y., 321; and see 11 N. Y. [1 Kern.], 274). And it shows how strictly the chancellor enforced the statute, that the rule is well established that, even if the bond is filed within the time limited for taking the appeal, but the sureties are not actually approved by the surrogate until afterwards, the appeal is irregular, and must be dismissed (Van Slyke v. Schmeck, 10 Paige, 303). The thirty days, limited by the Revised Statutes for appealing from the surrogate’s order of April 13, expired May 13 ; and the three months, so limited for appealing from his decree of April 13, expired July 13, 1871. But.no bond was filed with the surrogate ; and, though, as authorized by the act of 1870, the surrogate required that, before any appeal should be taken from the order or decree, the would-be appellants should first deposit, under his direction, the amount by it ordered or decreed to be paid, no such deposit was made until July 15, which was more than two months too late to take an appeal from the order respecting allowances, and three days too late to take an appeal from the decree of settlement of the administrator’s accounts. It is submitted, therefore, that the notice of appeal, which was filed July 13, was nugatory ; that the proceedings never got out of the surrogate’s court and into the supreme court; that the appeal was never of any effect for any purpose whatever, even to allow the supreme court to assume such jurisdiction of the proceedings as to attempt to allow the appellants to execute and file the bond afterwards. That court has no powers in the premises additional to those formerly enjoyed by the court of chancery. III. The decree of the surrogate, made on April 13, 1871, was not, as counsel calls it, a final decree, in the sense that it precluded the surrogate from any further proceedings in the matter in which it was entitled. It was merely a decree of final settlement of the accounts to which it refers. The finality intended by the term final settlement, refers to the conclusive character of the accounting, which, being made on citation to all parties in interest, is & final and conclusive adjustment up to that period {Dayton on Surr., 499). Is or does the term final settlement there mean that it is the last settlement of the administrator’s accounts. ‘ ‘ A final account may be had whenever there is anything to account for, so that whenever, after any final settlement, other assets come into the executor’s hands he may, as to them, have a final settlement, and so, loties quoties, as occasion may require” (Glover v. Holley, 2 Bradf. Surr., 293). The Revised Statutes, and all the acts of later date bearing on the subject, contemplate proceedings in the surrogate’s court, subsequent to such a decree, and the practice of that court affords many instances of proceedings in the matter in which the decree is entitled, which must be, and always are, taken after it is recorded. The .act of 1870 (ch. 369, § 12), is itself an instance of a law which necessarily implies orders to be made by the surrogate in such a matter, after the decree of final settlement— as it is only by an order so entitled that he can pay over to the rightful owners the money deposited under his direction in that matter, to abide the result of an appeal. The statute {Laws of 1837, ch. 460, § 2) prescribes exactly what the surrogate’s decree of final settlement of an account shall contain—i. e., “ a summary statement of the same as the same shall be finally settled and allowed by him,” with the declaration, of course, that it is so settled and allowed. Anything else would be out of place, if put in the decree.. The decree was perfect without the order, and could be appealed from at any time within three months after it was recorded (2 Rev. Stat., 610, § 105). The order for allowances could be made or not, as the surrogate might in his discretion think proper, without reference to whether the decree of final settlement of the accounts had found them correct or incorrect, as rendered by the administrator {Laws of 1863, ch. 362, § 8), or whether or not it had decreed that the administrator was still indebted to the estate. And it was a mere order, to be appealed from, if at all, within thirty days after it was made (2 Rev. Stat., 610, § 107). It was under section 8, ch. 362, Laws of 1863, and ch. 359, section 9, Laws of 1870, that the surrogate’s order of April 12, 1871, concerning allowances for counsel, was made. And it was made at the time when its recitals could show that everything had been done to establish the right to the amounts allowed,—i. <?., after the settlement of the accounts had been made, which could only be by decree made, though that decree had not then been recorded.. In that respect, though in no other, the practice in the surrogate’s court is like that in the common law courts, where the allowances to the successful party for counsel are made, upon motion, by a separate order of the court, after verdict, bat before judgment entered. There is no such thing, in the theory or practice of surrogate’s courts, as making up and filing at one and the same time all the various proceedings, orders, &c., in a “judgment roll”—nor is there any such thing there as “ docketing a judgment,” which includes in one statement the aggregate of the several amounts the successful party is entitled to recover from his adversary—verdict, interest, allowances, costs, taxable disbursements, &c. Every order and every decree by a surrogate, must be, and is, dealt with and appealed from, if at all, as a thing by itself and without reference to any other. In this case, the supreme court passed distinctly upon that point, and recognized and approved the practice. The order under consideration in this appeal, therefore, not only was not, but should not have been, a part of the surrogate’s decree of final settlement of the accounts of the administrator. IY. Counsel claims that section 12 of the act of 1870 repealed the provisions of the Revised Statutes requiring the bond of one hundred dollars, conditioned for prosecution of the appeal and payment of costs. But the provisions of that section of the act of 1870, are remedial of mischiefs for which the Revised ' Statutes did not provide. Theretofore, by merely filing the bond for one hundred' dollars, an administrator or executor secured a stay of proceedings pending an ap • peal, and, if so disposed, could, and frequently did, flee the jurisdiction, carrying away all the assets in his hands, and leaving claimants under the surrogate’s decree nothing but that bond—though no appellant from a judgment in a civil action could secure a stay of execution without filing an undertaking, under section 385 of the Code, for payment of the amount of the judgment and damages on appeal; even when he had, under section 334, filed an undertaking in five hundred dollars for costs and damages on the appeal. It is to be observed that the deposit which can be required or received by the surrogate is only of the exact sum by him ordered or decreed to be paid, with no margin for costs or damages on appeal, for which the respondent is evidently left to the old bond under 2 Rev. Stat. 610, § 108. When, therefore, as in this case, the deposit is required, the claimant under an order or decree of the surrogate is still not so well secured on appeal as is the judgment creditor in any other court, for he has only the bond of one hundred dollars to look to for his costs on appeal,—which are, under section 318 of the Code, the same as costs in an action, and quite certain to exceed one hundred dollars,—and nothing whatever for his interest or other damages for the delay in satisfaction of his claim. Under those circumstances,—as the act of 1870 does not express any repeal of the provisions of the Revised Statutes in question; as it is full, in other sections, of expressions of the intention of the legislature to retain all the preexisting requirements in reference to appeals; as the exaction of a deposit under section 12 is not inconsistent with or repugnant to the requirements of the old law ; and as the two not only may subsist together but are, as far as they go, complementary,—this court cannot im/ply a repeal of 2 Rev. Stat. 610, § 108 (Bowen v. Lease, 5 Hill, 225, per Nelson, Ch. J., citing many authorities). Y. The surrogate’s order concerning allowances for counsel was not appealable, It was entirely in his discretion to allow any amount for counsel on the settlement of the accounts, not exceeding ten dollars for each day engaged therein and in preparing therefor {Laws of 1868, ch. 362, § 8). There are no cases which assert for one court any right to review the exercise of a discre- . tion vested by law in another, which is not shown to have exceeded its authority. No appeal lies in such a case from one court to another. The principle is always recognized, even in the cases which hold that where a court, which has special terms or circuits, and also has general terms for appeals in the court, exercises at special term or circuit a discretion vested by statute in the' court, an appeal lies therefrom to the general term—cases which go upon the theory that, until the appellate branch of the court has been consulted, it cannot be claimed that the court has expressed itself (People v. New York Central R. R. Co., 29 N. Y., 423; S. C., 30 How. Pr., 148). YI. That the consent of counsel to the order of July .12 was not a waiver of the appeal bond, is evident from the fact that the deposit there provided for was merely of the exact amount, with interest, of the sums by the surrogate ordered and decreed to be paid, with no margin for costs and damages on appeal. That consent was, in fact, merely that the deposit required by the surrogate to be made to his credit should be made in the manner and out of the fund in that order mentioned. VII. The order dismissing the appeal from the surrogate’ s order respecting the allowances should be affirmed. It is, in the matters affected by this appeal, a final order in a special proceeding ; it affects a substantial right of appellants, and does not involve any question of discretion in the court below (Code, § 11, subd. 3; Tracy v. Bank of Selma, 37 N. Y., 523; Maltby v. Green, 1 Keyes, 548). See note at end of case. [MAJORITY — By the Court.—Peckham, J.] By the Court.—Peckham, J. The appellants, in attempting to appeal from the decree or order of the surrogate in this matter, entirely omitted to give any bond as security for the respondent’s costs upon appeal. The decree was entered on the 12th of April, 1871, and the appeal attempted to be brought on the 12th of July following. The respondents moved to dismiss the appeal upon that ground, among others. The statute is peremptory, that “ no such appeal shall be effectual” until that bond be given (2 Rev. Stat., 610, § 108). This provision not having been complied with, the appeal is ineffectual for any purpose. It is not in the power of the court to grant any relief (Van Slycke v. Schmenck, 10 Paige, 301; Caldwell v. Mayor, &c., 9 Id. 572). The whole proceeding is under the Revised Statutes, and the provisions of the Code have no application (Code, § 471). The case does not show a waiver of the bond. The order appealed from is affirmed, with costs. In Dumbssil n. Spotts, determined at the same time, the court reiterated this decision, and Held, that on dismissing the appeal for such cause, the supreme court had no power to annex conditions, allowing a bond to be filed nunapro tuna, on payment of costs. This case came before the court on appeal from an order, the facts relating to which appear in the case in the text. The facts in this case appear in the statement preceding the decision in the last. From so much of the order of the supreme court as granted conditionally only, not absolutely, the motion to dismiss the appeal to that court from the surrogate’s decree of final settlement of the accounts, these appellants appealed to the general term, where-the'order was in that respect affirmed. An appeal was thence taken to this court. Burton N. Harrison, for appellants. appellants,—-Insisted Insisted upon the argument made by him in the case in our text, to show that the appellants were entitled to an order of the supreme court of absolute dismissal of the appeal from the surrogate’s decree, of strict legal right, which the-court had no discretion to withhold. Though the order of the general term was an interlocutory, not a final, order in a special proceeding, it is appealable to this court (Code, § 11, subd. 4, as amended in 1870; Townsend v. Hendricks, 40 How. Pr., 143; Matter of Duff, 10 Abb. Pr. N. S., 310). Joseph H. Dulces, for respondents. By the Court.—Peckham, J. J.—The The decision in the case of Jane B. Spotts decides this case. The court had no power to annex any conditions to the dismissal of the appeal. No legal appeal having been taken, the dismissal should have been absolute. The order, so far as appealed from, is reversed, without costs to-either party in this court.