Opinion
Argued May 24, 1916
Decided June 6, 1916
Charles H. Stoddard for appellants.
Beecher S. Clother for respondent.
This is an application for leave to sell the real estate of the decedent to pay his debts. When the matter was before this court on a former appeal ( 214 N.Y. 383) we held that the proceedings were defective, because it was a case which required the publication of a citation to unknown creditors, and that requirement had not been complied with. We reversed the order on that appeal and remitted the matter to the Surrogate's Court, to the end that a citation might be properly published as the law requires.
It now appears that after the case was again in the Surrogate's Court the petitioner published a citation to unknown creditors on his own authority without obtaining any order of publication from the surrogate. It is to be regretted that the order directing a sale of the decedent's property must be again reversed, but this court cannot overlook such a grave error as that pointed out.
The other objections to the order made by the appellants seem to us untenable and they do not require consideration. The order appealed from should be reversed and the matter again remitted to the Surrogate's Court, to the end that service of the citation may be properly made upon the creditors. The proceedings prior to the date of the surrogate's decision, reviewed on the former appeal, may stand, however, in full force and effect as against all parties heretofore served with the citation, and the costs in the Appellate Division and in this court will abide the final award of costs to be made by the surrogate.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO and POUND, JJ., concur.
Ordered accordingly.