Opinion
January, 1911.
Present — Ingraham, P.J., Laughlin, Clarke, Scott and Miller, JJ.
While the applicant is probably right in asserting that the appeal from the Surrogate's Court to the Appellate Division removes into the Supreme Court the whole proceeding so that the Surrogate's Court is divested of jurisdiction until the matter be formally remitted to the Surrogate's Court, the proper proceeding in view of this settlement, which upon its face appears to be an entirely proper settlement and should be approved, would be to allow the surrogate to give the necessary consents to the settlement and fix the allowance to the guardians ad litem. The surrogate will undoubtedly approve of this settlement when the matter is brought on before him, but he can act more intelligently than can this court as he has all the records before him and can make such provisions as will protect the rights of the infants. An order can, therefore, be entered remitting the proceeding to the Surrogate's Court whereupon he would have full authority to pass upon the questions presented.
Proceeding remitted to Surrogate's Court. Settle order on notice.