Opinion
June, 1920.
The report of the referee is confirmed. It appears therefrom that the so-called decision of Surrogate Sawyer, bearing date December 24, 1918, was not then made, but was actually made and filed on December 26, 1918, after and while said surrogate was under an order staying his proceedings. It follows that such decision was null and void. Hence, this court, acting on the appeal record and upon the testimony taken before the referee under order of this court, and under its plenary power under section 2763 of the Code of Civil Procedure, makes and directs an order granting the appellants' motion to vacate and set aside the said decision and any order entered thereon in the office of said surrogate. Jenks, P.J., Rich, Putnam, Blackmar and Kelly, JJ., concur.