Opinion
December 29, 1948.
Present — Taylor, P.J., McCurn, Larkin, Vaughan and Kimball, JJ.
Judgment insofar as appealed from reversed on the law, with costs to abide the event, and matter remitted to the Official Referee for further proceedings in accordance with the memorandum. Memorandum: The learned Official Referee did not pass upon the liability of the surety or the extent thereof. The record indicates that the parties were all in court and consented to the order of reference which by its terms submitted for determination among other things, "the amount of money or property with which the said Committee is chargeable, the amount for which the surety of the said Committee may be liable to pay to the said Edna Eagan Wolfe, Administratrix C.T.A., etc." While neither the administratrix c.t.a. of the incompetent nor the executrix of the estate of the deceased committee appears to question the amount of the surcharge as fixed in the judgment, nevertheless since there was not a complete determination of all the issues submitted, the judgment should be reversed and the matter remitted to the Official Referee to take such further proceedings as may be necessary for a determination of all the issues including the liability of the surety. All concur. (The portion of the judgment appealed from surcharges the committee of an incompetent and directs payment by the estate of the committee to the estate of the incompetent of the amount surcharged, and holds the casualty company liable for the amount to the limit of its bond.)