Opinion
March, 1916.
Ward B. Chamberlin (Lanman Crosby, of counsel), for Helen V. Kelchner, petitioner.
Daniel J. Mooney, special guardian.
This was an accounting proceeding, and objections having been filed the matter was referred to a referee to hear and determine. Exceptions were filed to his report and brought on in the Surrogate's Court for hearing, and on the surrogate's decision a decree was entered and an award for compensation made therein to the special guardian by the surrogate on the application therefor made before him preliminarily to the making of the decree. No question arose before the referee as to any costs or allowances to the special guardian or any party, nor was any reference thereto made by him. An application to file exceptions to such award by the surrogate was made for the purpose of bringing up for review before the appellate court the question of law as to the power of the surrogate to make such an award, it being claimed that under the provisions of section 1022 of the Code of Civil Procedure, the referee must award or deny costs. This application was denied upon the ground that upon the settlement of the case requests might be made for such finding or ruling, and exceptions taken under old section 2545 of the Code of Civil Procedure. When allusion was made in my previous decision to old section 2545 of the Code of Civil Procedure, as affording a remedy to the appellant and to put him in a position to raise the question of jurisdiction of the surrogate to make the allowance in question and his getting the benefit of any exception he might wish to take, section 994 of the Code of Civil Procedure, and my own decision in Matter of Nestell, 72 Misc. 331, were overlooked, and old section 2545 referred to by mistake. The determination of the surrogate making the allowance presents solely a question of law, and under section 994 of the Code of Civil Procedure, the appellant is entitled to interpose his exception thereto. The application for reargument is granted, and an order may be submitted in accordance with the above. Code Civ. Pro. § 1303.
Motion denied.