Opinion
May 11, 1949.
Present — Taylor, P.J., McCurn, Love, Vaughan and Kimball, JJ.
Order reversed on the law, without costs of this appeal to any party, and motion denied, without costs. Memorandum: Joseph Kornacki, as limited administrator (Surrogate's Ct. Act, § 122), instituted an action in 1941 in the Supreme Court of Erie County, against Bernard Behringer, to recover damages for the alleged wrongful death of his infant son. In January, 1947, Hon. WORTLEY B. PAUL, Surrogate of Erie County, entered an order authorizing the settlement and release of said cause of action for the sum of $400 and directing the removal of the limitations on the letters of administration. The decree from which this appeal is taken vacates the decree of former Surrogate PAUL and orders that the action for wrongful death be restored to the Trial Calendar of the Supreme Court and directs the Clerk of Erie County to place said action on the Trial Calendar of causes of action now pending in Erie County. We think that the Surrogate exceeded his authority in the matter. First, the so-called "order of settlement" was merely permissive, and its only purpose under section 122 of the Surrogate's Court Act is to determine the amount of security which a limited administrator must post before collecting fund for the estate (see Matter of Amo, 264 A D 516); also, the moving papers failed to show any facts which would justify the exercise of his discretion under subdivision 6 of section 20 of the Surrogate's Court Act. Secondly, the Surrogate had no jurisdiction over the calendars of the Supreme Court of Erie County. All concur. (The order revokes a previous order which approved a settlement, and restores the case to the Trial Calendar.)