THIRD DEPARTMENT, NOVEMBER TERM, 1901.

[Vol. 66.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. CLINTON H. SMITH, Relator, v. FREDERICK PHISTERER, as Acting Adjutant-General of the State of New York, and Others, Respondents.

Examining board — an officer ordered to appear before it is entitled to counsel. An officer of the National Guard of the State of New York, ordered to appear before an examining board appointed under section 64 of the Military Code (Laws of 1898, chap. 212) and be examined as to his moral character, capacity and general fitness for service, is entitled to be represented before such board by counsel, and the denial of this right constitutes an error which, of itself, requires that a decision of the board against such officer be set aside.

CERTIORARI issued out of the Supreme Court and attested on the 14th day of July, 1900, directed to Edward M. Hoffman, AdjutantGeneral of the State of New York, who has since died and in whose place as defendant in the above-entitled action has been substituted Frederick Phisterer, as Acting Adjutant-General, and others, commanding them to certify and return to the clerk of the county of Albany all and singular their proceedings in relation to the removal of the relator from the office of major of the Seventy-first Regiment, National Guard, New York, and his discharge from the militury service of the State of New York.

Alexander S. Bacon, for the relator.

John C. Davies, Attorney-General, for the respondents. PER CURIAM:

This is a certiorari to review the proceedings of a board of examination, appointed by the Governor, under the provisions of section. 64 of the Military Code (Laws of 1898, chap. 212), by general orders No. 7, to examine into the moral character, capacity and general fitness of the relator for service as a commissioned officer in the National Guard of the State.

The Court of Appeals in People ex rel. Smith v. Hoffman (166 N. Y. 462) has decided that this very board was acting judicially in this matter, and that its action is subject to review in the civil courts by a writ of certiorari.

That question being settled, we are now called upon to review those proceedings, and the Attorney-General practically concedes that they were not such as are required in tribunals exercising judicial functions.

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THIRD DEPARTMENT, NOVEMBER TERM, 1901.

When the relator appeared before such board he asked to be represented by counsel. That privilege was denied him. Such refusal was an error which, in itself, requires that the decision of such board be reversed and set aside. (People ex rel. Mayor v. Nichols, 79 N. Y. 582; People ex rel. McDonald v. Keeler, 99 id. 485; People ex rel. Campbell v. Hannan, 56 Hun, 471; People ex rel. Ellett v. Flood, 64 App. Div. 209.)

This conclusion renders it unnecessary to examine any of the other alleged errors of which the relator complains.

The determination of the board must be reversed and "orders No. 37," which is based thereon, must be vacated and set aside.

We are asked by the relator to also vacate "orders No. 7." That was the order which convened and created the board, whose proceedings we are now reviewing. It was made by the Governor and antedated all such proceedings. It is not within the scope of this writ, and, therefore, should not now be vacated.

All concurred.

Determination of the board of examiners reversed and order No. 37 vacated, with fifty dollars costs and disbursements.

In the Matter of the Petition of ELLEN MCMANUS, as Administratrix de bonis non of ANTHONY MCKNIGHT, Deceased, to Compel a Judicial Settlement of the Accounts of JOHN J. HARRIGAN, the Deceased Administrator, etc., of ANTHONY MCKNIGHT, Deceased. ELLEN MCMANUS, as Administratrix de bonis non of ANTHONY MCKNIGHT, Deceased, Appellant; HARVEY T. V. HARRIGAN and ELLEN E. HARRIGAN, as Executors, etc., of JOHN J. HARRIGAN, Deceased, Respondents.

Rehearing before a surrogate—it must appear that the newly-discovered evidence could not have been produced on the original hearing—what facts do not establish a right thereto.

A surrogate has no power, under subdivision 6 of section 2481 of the Code of Civil Procedure, to grant a new hearing on the ground of newly-discovered evidence, unless it appears that the evidence sought to be introduced could not with reasonable diligence have been obtained upon the original hearing.

THIRD DEPARTMENT, NOVEMBER TERM, 1901.

[Vol. 66. In 1896, an administratrix de bonis non, appointed after the death of the original administrator, who had died without rendering an account, instituted a proceeding in the Surrogate's Court to compel the executors of the adminis trator to render an account. On the hearing, which commenced on July 29, 1897, and continued from time to time until March 30, 1899, it appeared that the administrator had made no attempt to collect a $600 note, which was a part of the assets of the estate, until eighteen months after it became due. The administratrix de bonis non gave evidence tending to show that if such an attempt had been made during that time it would have been successful; that within six or eight months after the note became due, judgments against the makers of the note, aggregating several thousand dollars, had been collected. The executors of the deceased administrator did not dispute the latter fact and offered no excuse for the delay on the part of the administrator, who did not die until some years after the note became due. The proceeding resulted in a decree which was entered April 25, 1900, surcharging the account of the executors with the amount of the note, and no appeal was taken therefrom. March 11, 1901, the executors made a motion for a new hearing upon the ground of newly-discovered evidence, alleging that since the trial they had discovered that one of the makers of the note would testify that he and the other maker were insolvent and unable to pay the note at the time of its maturity; also that one of the judgments which was collected during the eighteen months' delay was not paid by him and that he did not know who paid it; that another judgment collected at that time was paid by a third party in whose interest the obligation had been incurred. They also presented the affidavit of such maker to the effect that since December, 1891, he "has been mainly out of the state," and that "prior to December, 1900, he was continuously out of the state for about a year." It was not shown, however, that such maker was not a resident of the city in which the hearing occurred during the pendency of the trial, or that until after the trial had closed the executors had made the slightest effort to ascertain from either of the makers their financial condition during the period when the administrator should have collected the note.

Held, that the executors had not presented a proper case for opening the decree and the granting of a new trial as to the item in question.

APPEAL by Ellen McManus, as administratrix de bonis non of Anthony McKnight, deceased, from a portion of an order of the Surrogate's Court of the county of Albany, entered in said Surrogate's Court on the 6th day of June, 1901, granting a motion made by the executors of John J. Harrigan, deceased, for a new trial upon the ground of newly-discovered evidence.

Anthony McKnight died April 14, 1889, and John J. Harrigan was appointed administrator of his estate. Harrigan died in 1893, and Harvey T. V. Harrigan and Ellen E. Harrigan duly qualified

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THIRD DEPARTMENT, NOVEMBER TERM, 1901.

as his executors. Subsequently, in 1896, Ellen McManus was appointed administratrix de bonis non of McKnight's estate. John J. Harrigan had never rendered any account of his proceedings as such administrator, and shortly after her appointment Ellen McManus commenced proceedings in the Surrogate's Court of Albany county against his executors to compel an accounting for the property belonging to the McKnight estate. Such proceedings resulted in a decree which was entered April 25, 1900, in which the accounts of such executors as filed by them were surcharged to the extent of $953.40 for a note which had been received by said John J. Harrigan as an asset of said McKnight, deceased, and which the surrogate held had been lost to the McKnight estate by the negligent omission of Harrigan to prosecute and collect the same. It also reduced a credit which was claimed for Harrigan as being moneys paid out for funeral expenses from $350.52 to $200. No appeal was taken from such decree. Subsequently, on March 11, 1901, such executors moved before said surrogate for a new trial upon such two items upon the ground of newly-discovered evidence. The surrogate made an order opening such decree and allowing a new trial as to both of such items; and from so much of such order as affected the item of $953.40 allowed on account of such note this appeal is taken.

John J. McManus, for the appellant.

Jacob H. Clute and Edward J. Meegan, for the respondents. PARKER, P. J.:

The surrogate's authority to grant a new hearing for newly-discovered evidence is given by subdivision 6 of section 2481 of the Code of Civil Procedure. It is to be exercised "only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers," and upon an appeal this court has the same power as the surrogate, and his determination must be reviewed by this court as if an original application were made to it. (See same section.)

One of the elementary principles which govern applications of this kind is that the moving party must make it appear that the new evidence sought to be introduced could not with reasonable diligence have been obtained upon the trial. Such motions are not enter

THIRD DEPARTMENT, NOVEMBER TERM, 1901.

[Vol. 66.

tained for the purpose of aiding a careless and negligent prepara

tion for trial.

In this case the charge against the executors was that, owing to their testator's neglect to collect, when due, a $600 note against William and Henry Kelly, the McKnight estate had been injured to that amount and interest. It was conceded that such testator had made no attempt to collect the note until some eighteen months after it became due, although he held it at that date as an asset of such estate. And as administrator thereof it was his duty to act with promptness and diligence to preserve the same. Manifestly, the first question that would suggest itself to them in meeting such a charge would be whether, when such note became due, and during the eighteen months' delay, it could have been collected had their testator made an effort to do so. In other words, were William and Henry Kelly, or either of them, pecuniarily able to pay it? On the trial the administrator de bonis non of the McKnight estate gave evidence to show that such an attempt would have been successful; that within six or eight months after the note became due several thousand dollars were collected through legal process against the Kellys by other parties. No evidence whatever was given by the executors against this showing. They made no excuse for the delay on their testator's part- no effort to dispute the fact that during that eighteen months of delay other creditors collected much larger demands. On such a state of facts the decree was rendered. After the lapse of about two years they come into court and say that they have since the trial discovered that Henry Kelly will testify that he and William Kelly were insolvent and unable to pay the note at the time of its maturity. Also, that he will testify that the Ella A. Gregory judgment, which was one that was collected during the eighteen months' delay, was not paid by him, and that he does not know who paid it. Also, that he did not pay the Standard Varnish Works judgment that was shown upon the trial to have been then collected, but that it was paid by a third party, in whose interest the obligation had been incurred by the Kellys. They present the affidavit of Henry Kelly to that effect, and he also swears that since December, 1891, he "has been mainly out of the state," and that " prior to December, 1900, he was continuously out of the state for about a year." In opposition to this claim of