Decker v. Elwood

Miller, P. J. The first point to be considered upon this appeal is as to the jurisdiction of the surrogate to open the decree on a prior accounting in the manner or to the extent which was done. I am inclined to think that the surrogate was vested with such a power. It has been thus held in numerous cases, and I am not prepared to say, that under the facts presented, he exceeded his authority in making the order which was granted, confining and limiting the accounting to the correction of alleged errors and mistakes which were specified and which were apparent. See Pew v. Hastings, 1 Barb. Ch. 452; Proctor v. Wanmaker, id. 302; Sipperly v. Baucus, 24 N. Y. 48; Dobke v. McClaran, 41 Barb. 493. [After a discussion in respect to the various items of the account passed upon, which is not believed to be of sufficient general interest to warrant publication, the opinion continues as follows:] The opening of the decree of a surrogate formally and lawfully made is always a matter of extreme delicacy, and requires the exercise of the soundest discretion. It should only be done in extraordinary cases, and where errors are plain, palpable and beyond any question. The greatest care and caution should at all times be observed in thus furnishing the opportunity to correct errors in the judgment of a competent tribunal, and it should never be done to the extent of allowing the whole subject-matter to be investigated and tried over again. Such a practice would be virtually permitting the same tribunal to review its own proceedings, the same as upon an appeal, which was never intended, and should not be tolerated. If the opposite party, as well as the petitioner, upon the hearing, desires the correction of certain errors, he should specify the same, so that they can be provided for in the order. The investigation should not go beyond this, and must be restricted to the provisions of the order. * * * [50] The decree must be modified in the particulars indicated, and the proceedings should be sent back to the surrogate with directions to proceed and restate the account in accordance with the views expressed, and allow costs and disbursements to both parties out of the estate. The costs of both parties to this appeal should also be paid out of the estate. Ordered accordingly.