Singer v. Hawley , 3 Dem. Sur. 571 ( 1884 )

The Surrogate.

There can be no doubt that subd. 6 of § 2481 of the Code is inapplicable to this case. The proceeding for the last of the series of accountings was commenced before chapter 18 went into effect; and § 3347, subd. 11, does not make it apply to such a proceeding. Nevertheless, that section was partly based upon former decisions of the courts, and was extended also, so as to embrace a broader field of jurisdiction. Before the Code, a Surrogate had power to open decrees for an excusable default resulting injuriously to the defaulting party, for clerical error, for fraud in procuring the decree, and for other like causes. The only additional power conferred is to grant a new trial or hearing “ for newly discovered evidence.” Hence, I regard it as wholly immaterial, in this case, whether subd. 6 is, or is not, applicable.

This brings us at once to the question, such as it is, whether this court can grant a re'-hearing for an error in law. This case, certainly, presents no features resembling fraud, error in placing or adding figures, procuring a signature to an important voucher by fraudulent representation, by means of which a credit is obtained, presenting a forged voucher and the like. The facts in the memorandum of the case of Story v. Dayton (22 Hun, 450), cited by petitioner’s counsel, are not very fully stated. It would seem that one ground of complaint was the appointment of an improper person—a clerk in the office of the administrator’s attorney—as the guardian ad litem, for the minors. The case reported discloses no particular errors of fact, or mistakes, justifying the decision to the effect that the order of the Surrogate be reversed “ unless the respondent will stipulate that the decree on final settlement may be amended in the particulars specified in the opinion herein,” none of which are specified in so much of the opinion as is published. Apparently, errors in fact are the subject of the allusion. Tucker v. McDermott (2 Redf., 312) has no application, as a motion to open a decree was not the subject of consideration. In re Tilden (Daily Reg., Mch. 17, 1884), no special guardian for the minor was appointed on the first accounting, which occurred in 1872, before the passage of any act requiring the appointment of such on an accounting. But, at that time, it was proper, as a matter of practice, to do so, and was then the actual practice of this court; and it had the effect of concluding him (Dayton’s Surr., 3rd ed., 505-507; Kellett v. Rathbun, 4 Paige, 102). This fact, alone, warranted the opening of the first decree, and any alteration of that necessarily affected, and involved the correction of, other and subsequent accountings, where special guardians had been appointed. But, in that case, the question here presented does not seem to have been raised, discussed, or considered. It is thus shown that the authorities cited by the learned counsel for the petitioner furnish but a feeble support to the proposition he urges.

If there were any such errors committed in the decrees as are complained of, and as to which I am not now in a position to determine, they were purely and simply errors of law. The question as to the proper amount of commissions to be allowed is not, in many cases, easy of solution, as is evidenced by many recent and conflicting decisions in various courts. Hqnce, the erroneous fixing of them in the decree, or the refusal by the court to allow any at all (of which I have heard) cannot be characterized as a fraud, a mistake, a clerical 'error, or the like. It is simply an error in law, however ignorant, corrupt, or negligent the court may have been in the discharge of its duty; and the only remedy, if the court, on attention being called to it dum fervet opus, fail to correct it, is by appeal. The decree embodies the deliberate and. solemn, even if reprehensible, judgment of the court. This court, before the Code, possessed no power to open such a decree and grant a rehearing in such a case; and none has been conferred upon it since, as the phrase “for other sufficient cause,” is to be construed as applying to causes ejusdem generis, only.

It will, I think, be conceded that questions relating to the allowance of commissions on specific bequests have arisen, mainly, as matters of law, concerning the nature of the subject of the bequest, as being specific or otherwise. Their allowance or rejection is still a question of law. And, whatever the adjudication may have been, it can only be remedied, if erroneous, by appeal, and not by a' motion of this character. The other errors complained of, belong to the same category, no errors of fact being assigned, and must be disposed of accordingly.

The authorities cited by the counsel for the trustee abundantly establish the principle that, where an intelligent and competent person is appointed the special guardian for the minor, the decree binds him as much as it would an adult. No allegation is made as to any want of intelligence or competency of the several persons who acted as such, on the several accountings; nor is there any suggestion of fraudulent conduct on their part.

Whether errors were committed on any, or all of the accountings, it is, therefore, needless to inquire. In any event, the petitioner having been represented by special guardian, on each occasion, and the time to appeal having expired, I cannot but regard him as concluded.

Motion denied.