Matter of Small , 158 N.Y. 128 ( 1899 )

After the entry of a decree in the matter of the final judicial settlement of the accounts of an executor, a petition was filed alleging that the executor had not accounted for all the moneys received by him, and praying the Surrogate's Court to open the decree and to compel a further accounting. Objection thereto was made by the executor, and, thereafter, testimony was offered and received in support of the petition and answer, and the result was an order by the surrogate denying the application to open the decree and to require a further accounting. On a review by the Appellate Division there was a difference of opinion in the court whether the application should have been granted, but the outcome was an affirmance of the order appealed from. It was a special proceeding (Code, § 3334; Matter of Smith, 95 N.Y. 526) and resulted in the decree, to open which this proceeding was instituted, and such decree was a final order in that special proceeding within the meaning of section 190 of the Code of Civil Procedure. Orders, subsequently made, denying motions to set aside the decree, or to open it, for the purpose of correcting errors or to compel further accounting, while later, in point of time, are not orders "finally determining" such special proceedings. (Van Arsdale v. King, 155 N.Y. 325; City ofJohnstown v. Wade, 157 N.Y. 50.)

The appeal should be dismissed, with costs.

All concur.

Appeal dismissed, with costs, and fifty dollars costs to the special guardian.