ARTICLE THIRD.

Decrees and Orders; and the Enforcement Thereof. Costs and Fees.

SEC. 2550. Definition of "final order" and

decree."

2551. Decree settling an account, to contain summary thereof.

2552. Decree or order; when evidence of assets.

2553. Decree for money; how docketed.

2554. Enforcement of decree by execution.

§ 2550. Definition of “final order” and “decree." The final determination of the rights of the parties to a special proceeding in a surrogate's court, is styled, indifferently, a final order, or a decree.

§ 2551. Decree settling an account, to contain summary thereof.

Each decree, whereby an account is judicially settled, must contain, in the body thereof, a summary of the account as settled; or must refer to such a summary, which must be recorded in the same book, and is deemed a part of the decree.

From ch. 460 of 1837, part of § 2 (4 Edm. 487).

See 2498, sub. 4.

§ 2552. Decree or order; when evidence of assets.

A decree, directing payment by an executor, administrator, or testamentary trustee, to a creditor of, or a person interested in, the estate or fund, or an order, permitting a judgment creditor to issue an execution against an executor or administrator, is, except upon an appeal therefrom, conclusive evidence that there are sufficient assets in his hands, to satisfy the sum which the decree directs him to pay, or for which the order permits the execution to issue.

From 2 R. S. 116, Part 2, ch. 6, tit. 5, part of § 21 (2 Edm. 121).

§ 2553. Decree for money; how docketed.

Where a decree directs the payment of a sum of money into court, or to one or more persons therein designated, the surrogate, or the clerk of the surrogate's court, must, upon payment of his fees, furnish to any person applying therefor, one or more transcripts, duly attested, stating all the particulars, with respect to the decree, which are required by law to be entered in the clerk's docket-book, where a judg

ment for a sum of money is rendered in the supreme court, so far as the provisions of law, directing such entries, are applicable to such a decree. Each county clerk, to whom such a transcript is presented, must, upon payment of his fees, immediately file it, and docket the decree in the appropriate docket-book, kept in his office, as prescribed by law for docketing a judgment of the supreme court. The docketing of such a decree has the same force and effect, the lien thereof may be suspended or discharged, and the decree may be assigned or satisfied, as if it was such a judgment.

From ch. 460 of 1837, §§ 63 and 64 (5 Edm. 498), as amended by ch. 104 of 1844, § 2 (4 Edm. 627).

§ 2554. Enforcement of decree by execution.

A decree, directing the payment of a sum of money into court, or to one or more parties, may be enforced by an execution against the property of the party directed to make the payment. The execution must be issued by the surrogate, or the clerk of the surrogate's court, under the seal of the court, and must be made returnable to the court. In all other respects, the provisions of this act, relating to an execution against the property of a judgment-debtor, issued upon a judgment of the supreme court, and the proceedings to collect it, apply to an execution issued from the surrogate's court, and the collection thereof, the decree being, for that purpose, regarded as a judgment; except that the proceedings prescribed in title twelfth of chapter seventeenth of this act, if founded upon such a decree, must be taken, as if the decree was a judgment of the county court, or, in the city of New York, of the supreme court.

From Id., remainder of § 64.

Am'd by ch. 946 of 1895.
See 1197, Consol. Act.

§ 2555. Id.; by punishment for contempt.

In either of the following cases, a decree of a surrogate's court, directing the payment of money, or requiring the performance of any other act, may be enforced, by serving a certified copy thereof upon the party against whom it is rendered, or the officer or person who is required thereby, or by law. to obey it; and if he refuses or wilfully neglects to obey it by punishing him for a contempt of court:

I. Where it cannot be enforced by execution, as prescribed in the last section.

2. Where part of it cannot be so enforced by execution; in which case, the part or parts, which cannot be so enforced, may be enforced as prescribed in this section.

3. Where an execution. issued as prescribed in the last section, to the sheriff of the surrogate's county, has been returned by him wholly or partly unsatisfied.

4. Where the delinquent is an executor, administrator. guardian, or testamentary trustee, and the decree relates to the fund or estate, in which case the surrogate may enforce the decree as prescribed in this section, either without issuing an execution, or after the return of an execution, as he thinks proper.

If the delinquent has given an official bond, his imprisonment, by virtue of proceedings to punish him for a contempt, as prescribed in this section, or a levy upon his property by virtue of an execution, issued as prescribed in the last section, does not bar, suspend, or otherwise affect an action against the sureties in his official bond.

See § 1241.

§ 2556. Definition of "order;" how enforced.

A direction of a surrogate's court, made or entered in writing, and not included in a decree, is styled an order. It may be enforced in

like manner as a similar order, made by the supreme court in an action; and the costs are the same as upon such an order, and may be collected in like manner.

See § 767.

§ 2557. Costs; how made payable.

Except where special provision is otherwise made by law, costs, awarded by a decree, may be made payable by the party personally, or out of the estate, or fund, as justice requires; but costs other than actual expenses, cannot be awarded to be paid out of an estate or fund, which is less than one thousand dollars in amount or value.

From 2 R. S. 223, Part 3, ch. 2, tit. 1, § 10 (2 Edm. 232), and ch. 784 of 1866 (6 Edm. 831), and ch. 782 of 1867, § 8 (7 Edm. 169).

§ 2558. Id.; when awarded.

The award of costs in a decree is in the discretion of the surrogate, except in one of the following cases:

1. Where special directions, respecting the award of costs, are contained in a judgment or order, made upon an appeal from the surrogate's determination, or upon a motion for a new trial of questions of fact tried by a jury; in either of which cases, costs must be awarded according to those directions.

2. When a question of fact has been tried by a jury; in which case, unless it is within the foregoing subdivision, the decree must award costs to the successful party.

3. When the decree is made upon a contested application for probate, or revocation of probate of a will, costs, payable out of the estate or otherwise, shall not be awarded to an unsuccessful contestant of the will, unless he is a special guardian for an infant, appointed by the surrogate, or is named as an executor in a paper propounded by him, in good faith, as the last will of the decedent; but the surrogate may order a copy of the stenographer's minutes to be furnished to the contestant's counsel, and charge the expense thereof to the estate if he shall be satisfied that the contest is made in good faith.

From Id., and 2 R. S. 102, Part 2, ch. 6, tit. 4, § 12 (2 Edm. 106), and 2 R. S. 63, Part 2, ch. 6, tit. 1, § 39 (2 Edm. 62). Sub. 3 am'd by ch. 535 of 1881.

§ 2559. Id.; how awarded.

Costs, when awarded by a decree include all disbursements of the party to whom they are awarded, which might be taxed in the supreme court. The sum allowed for costs must be fixed by the surrogate, and inserted in the decree.

§ 2560. Id.; when the same as in supreme court.

Where a question of fact has been tried by a jury, the costs. awarded against the unsuccessful party, are the same as the taxable costs of an action in the supreme court. The costs of an appeal, where they are awarded in a surrogate's court, are the same as if they were awarded in the supreme court.

§ 2561. When surrogate to fix amount of costs.

In a case other than one of those specified in the last section, the surrogate, upon rendering a decree. may, in his discretion, fix such a sum, to be allowed as costs, in addition to the disbursements, as he deems reasonable, not exceeding, where there has not been a contest, twentyfive dollars, or where there has been a contest, seventy dollars; and, in addition thereto, where a trial or hearing upon the merits before the surrogate necessarily occupies more than two days, ten dollars for each additional day; and where a motion for a new trial is made before the surrogate, if it is granted, seventy dollars; if it is denied, forty dollars.

§ 2562. Additional allowance in settling accounts.

In addition to the sums specified in the last two sections, the surrogate may, in his discretion, allow to an executor, administrator, guardian, or testamentary trustee, upon a judicial settlement of his account or on an intermediate accounting required by the surrogate, such a sum, as the surrogate deems reasonable, for his counsel fees and other expenses, not exceeding ten dollars for each day occupied in the trial, and necessarily occupied in preparing his account for settlement, and otherwise preparing for the trial.

From ch. 362 of 1863, § 8 (6 Edm. 127), and ch. 115 of 1866 (6 Edm. 700). Am'd by ch. 535 of 1881.

§ 2563. Allowance upon sale of real property.

Upon the disposition of real property of a decedent, as prescribed in title fifth of this chapter, the executor, administrator, or freeholder, disposing of the property, must be allowed by the surrogate, out of the proceeds of the sale brought into court, his expenses; and he may be allowed, out of the proceeds, a reasonable sum for his own services, not exceeding five dollars for each day actually and necessarily occupied by him in disposing of the property, and such a further sum as the surrogate thinks reasonable, for the necessary services of his attorney and counsel therein.

From ch. 300 of 1844, § 2 (4 Edm. 694).

§ 2564 Id.; no commissions allowed.

The allowances, specified in the last section, are in lieu of commissions.

§ 2565. Fees of appraiser.

An appraiser is entitled, in addition to his actual expenses, to a sum, to be fixed by the surrogate, not exceeding five dollars for each day actually and necessarily occupied by him in making the appraisal or inventory. The number of days' services and the expenses, if any, must be proved by the affidavit of the appraiser; and the sums payable therefor taxed by the surrogate, and paid by the executor or administrator.

From ch. 225 of 1873 (9 Edm. 586).

§ 2566. Id.; other officers and witnesses.

Each other officer, including a referee, and each witness is entitled to the same fees for his services and for travelling, as he is allowed for like services in the supreme court.

From ch. 225 of 1873 (9 Edm. 586), and 2 R. S. 59, Part 2, ch. 6, tit. 1, § 19 (2 Edm. 60).

§ 2567. Fees of the surrogate.

A surrogate shall not charge or receive any fee, except as follows: 1. Where, in a case prescribed by law, or in any other case, upon the application of a party, he goes to a place other than his office, or the court room where he is required to hold court, in order to take testimony, he may charge, and receive to his own use, ten cents for each mile for going, and the same sum for returning.

2. He must charge, and receive to the use of the county, for a copy of a paper, ten cents for each folio, except where the board of supervisors have allowed his clerk to receive fees for his own use; and in that case, his clerk may charge and receive the same fee.

From ch. 246 of 1869, § 1 (7 Edm. 433), as amended by ch. 359 of 1870, also ch. 460 of 1837, § 69.

ARTICLE FOURTH.

Appeal.

SEC. 2568. When party may appeal.

2569. When person not a party may appeal.

2570. Appeal; to what court it may be taken.

2571. Intermediate order; how reviewed.

2572. Time to appeal.

2573. Who must be made parties.

2574. Appeal; how taken.

2575. Certain provisions of chapter 12 made applicable.

2576. Appeal may be on the law or the facts; case to be made, etc.
2577. Security to perfect appeal.

2578. Id.; where decree is for money, or delivery of property, etc.
2579. Security to stay proceedings in case of commitment.

2580. Amount of undertaking; how fixed.

2581. Requisites of undertaking.

2582. Decree of probate, etc.; how far suspended by appeal.

2583. Decree revoking probate, etc., not stayed.

2584. Perfected appeal stays proceedings in other cases.

2585. Appeal, where heard; proceedings thereupon.

2586. Power of appellate court; further testimony.

2587. Judgment or order upon appeal.

2588. Award of jury trial upon reversal in probate cases.
2589. Costs of appeal.

§ 2568. When party may appeal.

Any party aggrieved may appeal from a decree or an order of a surrogate's court, in a case prescribed in this article, except where the decree or order of which he complains was rendered or made upon his default.

See § 1294.

§ 2569. When person not a party may appeal.

A creditor of, or person interested in, the estate or fund affected by the decree or order, who was not a party to the special proceeding, but was entitled by law to be heard therein, upon his application; or who has acquired, since the decree or order was made, a right or interest which would have entitled him to be heard, if it had been previously acquired; may intervene and appeal, as prescribed in this article. The facts which entitle such a person to appeal, must be shown by an affidavit, which must be filed, and a copy thereof served with the notice of appeal.

See §§ 1296, 2514, sub. 11.

§ 2570. Appeal; to what court it may be taken.

An appeal to the appellate division of the supreme court may be taken from a decree of a surrogate's court, or from an order affecting a substantial right, made by a surrogate, or by a surrogate's court in a special proceeding.

From 2 R. S. 609, Part 3, ch. 9, tit. 3, § 104 (2 Edm. 632); 2 R. S. 711, Part 3, ch. 9, tit. 3, § 118, and 2 R. S. 62, Part 2, ch. 6, tit. 1, § 35 (2 Edm. 62).

Am'd by ch. 946 of 1895.

See 88 2558 and 2561.