Utica National Bank & Trust Co. v. Grossman

Under the stipulation of the parties this was a discovery proceeding, and the Surrogate’s Court had jurisdiction to dispose of every claim to property involved in it. (Surr. Ct. Act, §§ 40, subd. 4, 205, 206; Matter of Akin, 248 N. Y. 202, 206.) That court should have weighed the evidence and passed upon the controversy on the merits. It not having done so, we decline to consider the facts (Surr. Ct. Act, § 309), although the appeal is upon the facts as well as upon the law. Under section 309 of the Surrogate’s Court Act, it is at least doubtful whether under the circumstances we have power…