Opinion
May 18, 1906.
Charles M. Demond [ Russell G. Lucas with him on the brief; Walter S. Logan, attorney], for the appellant.
Henry De Forest Baldwin [ Lord, Day Lord, attorneys], for the respondent.
The administratrix's account herein filed in the Surrogate's Court was referred to a referee "to inquire into the necessary jurisdictional facts, to examine said account and objections, to hear and determine all questions arising upon the settlement of said account which the surrogate has power to determine and to make a report to the court," under section 2546 of the Code of Civil Procedure. By said section the report is "subject, however, to confirmation or modification by the surrogate. Such a referee has the same power * * * as a referee appointed by the Supreme Court, for the trial of an issue of fact in an action, and the provisions of this act, applicable to a reference by the Supreme Court, apply to a reference, made as prescribed in this section, so far as they can be applied in substance without regard to the form of proceeding."
The reference proceeded, and the learned referee made his report in writing. In said report it was stated: "The only objections to the account are sixteen in number, filed by Carrie B. Schroeder as general guardian of the infant Philis L. Schroeder. I dispose of the issues raised by the objections as follows." Thereafter follow numbered paragraphs, in each one of which a specific objection is taken up, the facts in regard to it are stated, and a conclusion is reached. The report winds up with a summary statement of the account as found by the referee. To this report the contestant took detailed and specific exceptions in extenso, and the administratrix likewise took exception. The learned surrogate, upon these exceptions, reversed certain portions of the report, modified others and, as modified, affirmed the same, and entered a decree thereon. From this decree the administratrix appealed. ( Matter of Schroeder, No. 1, 113 App. Div. 204.) Subsequently the administratrix moved to vacate the decree and to send back the report to the referee in order that he, as such referee, might make, pursuant to sections 2546 and 1022 of the Code of Civil Procedure, findings of fact and conclusions of law separately numbered, in accordance with his report, and that the parties have a right to make and file exceptions to such findings and conclusions when made, and that said new findings and exceptions be filed nunc pro tunc as of the date of filing of the said report, and upon such filing that the decree be re-entered as the decision of the Surrogate's Court herein. The motion having been denied, the administratrix appeals.
It seems to me that the order appealed from should be affirmed. The purpose intended to be accomplished by the requirement of findings of fact and conclusions of law separately stated was to clearly indicate to the court the basis of fact upon which the conclusion of law followed and required the decree or judgment to be rendered, and to permit the parties to take clear and definite exceptions for purposes of review. While not strictly complying in form, the report precisely states the facts and the rulings thereon in all matters at issue between the parties. Neither the parties nor the surrogate were left groping in the dark. The questions were sharply raised by the exceptions and squarely decided. Under those circumstances it would seem to be an idle ceremony, after the decree, after appeal therefrom, and after the printing of a voluminous record, upon the eve of argument, to send back a report to the referee to make clear what is not obscure, to permit exceptions to be taken which have already been taken, to raise questions which have already been decided. No proposed findings were submitted to the referee which he refused or failed to pass upon, and whatever rights the appellant may have had were waived by not objecting to the report in season, but in taking her exceptions thereto, arguing them before the surrogate, and appealing from his decree. We think that the practice requires referees in Surrogates' Courts to conform to the provision for separately stating and numbering findings of fact and conclusions of law, but upon the record in the case at bar the order should be affirmed, with ten dollars costs and disbursements to the respondent.
O'BRIEN, P.J., INGRAHAM, McLAUGHLIN and HOUGHTON, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements to respondent. Order filed.