Smith v. Van Kuren
New York Court of Chancery
This was an application, on the part of the respondents, to dismiss an appeal from a decree of the surrogate of the county of Ulster, upon the ground that the appeal was not entered in time. The order appealed from was dated the 20th of January, 1846, and purported to be an order for a final settlement, and for the discharge of the respondents as executrix and executor, upon the payment of the sums specified in the decree.
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This was an application, on the part of the respondents, to dismiss an appeal from a decree of the surrogate of the county of Ulster, upon the ground that the appeal was not entered in time. The order appealed from was dated the 20th of January, 1846, and purported to be an order for a final settlement, and for the discharge of the respondents as executrix and executor, upon the payment of the sums specified in the decree. But the affidavits on the part of the respondents showed that the decree was not yet actually entered, as late as the 10th of March, 1846, nor did it appear when it really…
1Opinion of the Court
The Chancellor.
The transcript in this cause was not filed until after the notice of the motion to dismiss the appeal. And if the respondents had placed their application upon that ground alone, and not upon the supposed irregularity of the appeal itself, they would have been entitled to the costs of the motion; although the court in the exercise of its discretion, might have refused to dismiss the appeal.
So far as I can form an opinion, from the papers before me, this must be considered as an appeal from a decree for the final settlement of the accounts of the respondénts, as the executor an…
2Cited by2 opinions
- In re the Estate of UglowNew York Surrogate's Court · 1876
- Berdell v. SchellNew York Surrogate's Court · 1883