In re the Estate of Corrigan , 10 A.D.2d 767 ( 1960 )

Appeal from an order of the Broome County Surrogate’s Court denying appellant’s motion to vacate a previous order of the same court transferring the case to the County Court of Broome County for the trial of certain issues of fact. This proceeding was brought under section 231-a of the Surrogate’s Court Act to fix and determine appellant’s fee as an attorney. Appellant appeared and answered the petition and demanded, in writing a jury trial. After due notice and a hearing at which both parties were represented, the Surrogate orally granted an order transferring the case to the County Court for a jury trial and directed appellant to prepare and submit an order. When this was not done, the Surrogate requested attorneys for the respondent to prepare an order, and after personally making certain changes, the Surrogate signed the order. While both parties treat it as such, it would seem doubtful if an order thus made, after notice and a hearing, is an ex parte order. If appellant was dissatisfied with the form or content of the order itself, he could, and still can, move to resettle it. The Surrogate had the authority under section 68 of the Surrogate’s Court Act to make the order and there is nothing in the record to justify the reversal of an order refusing to vacate it in its entirety. Order unanimously affirmed, with $10 costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.