In re the Final Judicial Settlement of the Accounts of Daymon

Willard Bartlett, J.: This is an appeal from a decree of the Surrogate’s Court upon an executor’s accounting, and from an order denying an application to set aside the decree in order to enable the accounting executor to put in the testimony of a material witness whom he had not been able to call upon the hearing. The account of the executor was objected to on the ground that he had failed to account for $2,000 paid to his testatrix shortly before her death. The executor put in a reply, alleging that the testatrix had made a gift of these moneys to him. Upon this issue a hearing was had before the ■ surrogate, which resulted in the [316] decree appealed from, charging the executor with the $2,000 in controversy. The record does not contain any findings by the learned surrogate ; and the counsel for the respondent, in his brief, expressly states that the surrogate made no findings, as required by section. 2545 of the Code. Such findings are indispensable as a basis for the decree. In their absence the record presents no question which Ave can review. (Matter of Sprague, 125 N. Y. 732; Matter of Kaufman, 39 N. Y. St. Repr. 236 ; Matter of Bradway, 74 Hun,. 630.) Under these circumstances, the proper course to pursue is to remit the case to the surrogate as an undecided cause, in order that he-may make and file findings as prescribed by law. This is the procedure Avhich we have adopted in cases in the Supreme Court where the trial judge has failed to make findings, or the short decision noAV permitted in. lieu thereof by section 1022 of the Code. (Hall v, Beston, 13 App. Div. 116; Shaffer v. Martin, 20 id. 304.) As there has been no final decision of the matter in this view of' the law, the learned surrogate will doubtless permit the appellant to-put in the proof which he could not procure upon the original hearing, if the executor now presents good and sufficient reasons for-being allowed to do so. Decree reversed and proceeding remitted to the Surrogate’s. Court, in order that the surrogate may make and file the findings, prescribed by section 2545 of the Code of Civil Procedure;. the-costs of this appeal to abide the final award of costs. Appeal from order denying motion to vacate decree dismissed-, without costs. All concurred. Decree reversed and proceeding remitted to the Surrogate’s Court for decision; the costs of this appeal to abide the final award of costs. Appeal from order denying motion to vacate decree dismissed, without costs.