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Matter of Walker

Surrogate's Court of the City of New York, New York County
Apr 1, 1904
43 Misc. 475 (N.Y. Surr. Ct. 1904)

Opinion

April, 1904.

Lockwood Hill, for administratrix.

Gilbert W. Minor, for Robert Walker et al.

James E. Kelly, special guardian.

John F. Foley, referee.


The order of reference made in this matter, which is a proceeding to dispose of real estate for the payment of decedent's debts, is in effect an order which requires the referee to take and report the evidence upon the facts, with his opinion thereon. Of the power of the court to make such order, under the authorization given to the surrogate by section 2546 of the Code of Civil Procedure to appoint a referee "to take and report to the surrogate the evidence upon the facts," there can be no doubt. Matter of Ferrigan, 42 A.D. 1; affd., 160 N.Y. 689; Matter of Pearsall, 21 N.Y. St. Repr. 305; Matter of Hale, 45 A.D. 579. Section 2546 also empowers the surrogate to appoint a referee to take and report the evidence "upon a specific question of fact; to examine an account rendered; to hear and determine all questions, arising upon the settlement of such an account, which the surrogate has power to determine," and further declares that: "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." The most cursory examination of this language suffices to show that it is not confined in its application to referees appointed in any one of the classes of reference specified, but applies to each and all of them. Matter of Russell, 3 Dem. 377, 378; Matter of Leffingwell, 30 Hun, 530. This being so, it is obvious that the referee appointed in this proceeding has the same power to pass upon questions of the admissibility or exclusion of evidence as a referee appointed by the Supreme Court to try an issue of fact in an action. See Matter of Allemann, 1 Conn. 441. This matter is remitted to the referee to make such rulings as may be proper in the premises.

Decreed accordingly.


Summaries of

Matter of Walker

Surrogate's Court of the City of New York, New York County
Apr 1, 1904
43 Misc. 475 (N.Y. Surr. Ct. 1904)
Case details for

Matter of Walker

Case Details

Full title:Matter of the Estate of JEANNETTE M. WALKER, Deceased

Court:Surrogate's Court of the City of New York, New York County

Date published: Apr 1, 1904

Citations

43 Misc. 475 (N.Y. Surr. Ct. 1904)
89 N.Y.S. 459

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