2. SAME-ORDER OF SURROGATE-WHEN DISTURBED.

Where the surrogate has frequently had the matter of the will and the appointment of such administratrix before him, and is fully advised of her acts, his order refusing to remove her, on the ground that she conceals herself so that process cannot be served on her, will not be reversed, when such fact is not clearly substantiated.

Appeal from surrogate's court, New York county.

Petition for the revocation of letters of administration with the will annexed on the estate of Samuel Wood, deceased, theretofore issued to Jennie E. Wood. From an order denying the petition,

petitioners appeal. Affirmed.

For other reports of litigation arising under this will, see 7 N. Y. Supp. 836; 8 N. Y. Supp. 884; 17 N. Y. Supp. 354; 8 N. E. Rep. 387; 23 N. E. Rep. 1151.

Argued before VAN BRUNT, P. J., and O'BRIEN and LAWRENCE, JJ.

Julien T. Davies and Byron Traver, for appellants.

B. E. Valentine, for respondent.

LAWRENCE, J. This is an appeal from an order or decree of the surrogate of the city and county of New York, denying the application of the appellants for a revocation of the letters of administration with the will annexed upon the estate of Samuel Wood, deceased, theretofore issued to the respondent, Jennie E. Wood. The application is made under section 2685 of the Code of Civil Procedure, and is based upon four grounds: (1) That she has wasted the estate to which the appellants would be ultimately entitled; (2) that she is completely under the influence of an attorney for per sons asserting large claims against the estate, and who was using the administratrix for his own ends and purposes; (3) that she had kept herself concealed, under the advice of such attorney, so that process could not be served upon her; and (4) her connivance at the commission of a fraud on the part of said attorney, in securing an opinion on a question of law from this court upon an agreed

case.

The testator, Samuel Wood, died in 1878, leaving a will and codicil, which were duly admitted to probate by the surrogate of the county of New York. He devised his residuary estate to his executors, in trust to invest and provide for the payment of certain life annuities and legacies; and, second, to create and maintain a benevolent hospital. By the codicil it was provided that, instead of a hospital, the devise and bequest of the residuary estate should be applied to the founding of a musical institution to be known as and called "The Samuel Wood Musical College," or "The Samuel Wood College of Music of the City of New York." The gift in trust for charitable uses was finally declared to be incapable of enforcement, and void, and therefore so much of the residuary estate as was directed to be applied to such uses passed to Abraham Hewlett, the nephew of the testator, and his sole heir and next of kin. Two of the executors are dead, one was removed, and the letters to the v.24 N.Y.S.no.1-5

fourth were revoked as having been improperly granted. In January, 1891, the office of executor under the will and codicil being vacant, letters of administration cum testamento annexo were issued to the respondent, Jennie E. Wood.

The allegation of waste is based upon the fact that the administratrix sold a piece of land containing 14 acres to one Nesbitt for $500, which it is claimed was far below the value of the property, and that, in consequence of its peculiar situation with reference to other portions of the property, it was largely increased in value. We deem it sufficient to say in regard to this allegation that, on the proceeding before the surrogate, affidavits were produced, tending to show that the sum for which the property was sold by her was its fair and reasonable value. It is true that the affidavits produced on the part of the appellants place the value of the property at a much greater sum, but in view of this conflict of evidence we do not think the appellants have made out such a case of improvidence against the administratrix as would justify her removal.

Neither do we consider that the appellants have made out that the administratrix is so thoroughly under the control of her attor ney that she ought to be removed. The submission of the case of Wood v. Nesbitt, (Sup.) 16 N. Y. Supp. 918, to the general term, was undoubtedly done under the advice of the attorney; but we cannot say that that act was so improper on the part of the respondent as to lead us to deprive her of her office. The general term, in that case, decided that the attorney was in fact the counsel for both parties, and that the controversy was not of that character which the Code contemplates, and therefore it recalled the decision which it had rendered upon the submitted case. The conduct of the attorney may have been improper, but it is not established that the respondent knew, or had reason to believe, that there was any impropriety in the action which the attorney had taken.

As to the point that the letters issued to the respondent were improperly issued, we think that the appellants are not entitled to question the validity of those letters, in view of the decision of the surrogate, made upon the application of Joseph S. Wood, (17 N. Y. Supp. 354,) who claimed a prior right to the administratrix to such letters.

In respect to the allegation that the administratrix has concealed herself so that process could not be served upon her, we do not find that fact sufficiently substantiated to warrant us in reversing the decision of the surrogate. The surrogate has had the matter of this will and the appointment of the respondent frequently before him, and has been fully apprised of her acts. After a full hearing of the allegations of the petitioners and the respondent, and argument thereon, he has declined to grant the prayer of the petitioners, and, although we have the right to examine this matter as res nova, we think that upon the whole case the decision of the surrogate should be confirmed.

Various technical exceptions to the procedure of the petitioners, and the regularity of their practice, are discussed in the brief sub

mitted on the part of the respondent, which it is unnecessary, in the view we have taken of this case, for us to consider. We are therefore of opinion that the decree or order of the surrogate should be affirmed, with costs. All concur.

(70 Hun, 366.) ROMAINE v. BOWDOIN et al.

(Supreme Court, General Term, First Department. June 30, 1893.)

1. MOTION TO STRIKE CASE FROM CALENDAR-CHANGE OF ISSUE.

A motion to strike a case from the calendar, made when the case is regularly reached, will be granted where the issue represented on the calendar has been superseded by a new issue under an amended complaint and answer.

2. DATE OF ISSUE-STIPULATION-CONSTRUCTION.

Where plaintiff, after the complaint has been served, inserts in a stipulation extending defendant's time to answer, "Date of issue to be of this date," the issue referred to is the issue to be joined by the service of the answer, and not that joined by a demurrer to the complaint.

Appeal from special term, New York county.

Action by Victoria A. Romaine against George S. Bowdoin and others. From an order denying defendants' motion to strike the case from the calendar, defendants appeal. Reversed.

Argued before FOLLETT and PARKER, JJ.

Butler, Stillman & Hubbard, (Arthur H. Van Brunt, of counsel,) for appellants.

Redfield & Redfield, (Robert L. Redfield, of counsel,) for respond

ent.

PARKER, J. This action being regularly reached on a call of the calendar in circuit court, the defendants moved that it be stricken therefrom, on the ground that the issue represented on the calendar had been superseded by a new issue, created by the service of an amended complaint and answer. Such was the fact, and a new note of issue and a new notice of trial were necessary to bring on for trial the issue presented by the amended pleadings. Ostrander v. Conkey, 20 Hun, 421. But the point was made on the motion, and is renewed here, that the usual practice had been waived, by stipulating that the date of issue should be December 29, 1891. We do not so understand the stipulation. At the time it was made the complaint had been served, and in extending defendants' time to plead plaintiff's attorneys inserted therein, "Date of issue to be of this date." The issue referred to was, of course, the issue to be joined by the service of the pleading which the defendants were obtaining time to prepare. Subsequently the issue was joined by the service of a demurrer. It was afterwards tried, and the trial resulted in favor of the defendants. That issue, which was the one appearing on the calendar, was therefore at an end. It was with reference to it, and not to the issue subsequently created, that the parties stipulated.

The order should be reversed, with $10 costs and disbursements.

(70 Hun, 363.)

MANHATTAN RY. CO. v. STROUB.

(Supreme Court, General Term, First Department. June 30, 1893.) PROCEEDING UNDER THE CONDEMNATION ACT-APPEAL-STAY-WHEN ALLOWED. Code Civil Proc. § 3375, provides for appeals to the general term from judgments and orders in proceedings under the "Condemnation Act," and that such appeals shall be governed by chapter 12, tit. 4, regulating appeals to the general term in civil actions, but "the proceedings of plaintiff shall not be stayed upon such an appeal, except by order of the court, upon notice to him." Held, that such an appeal from a judgment in favor of one who held the fee to certain property, and against one who held the same under a lease from a former owner, and from an order confirming the award of commissioners assessing defendant's damages, would not be stayed where defendant tendered no bond for damages resulting from such stay, and where it did not appear that plaintiff was unable to pay all damages assessed.

Proceeding by the Manhattan Railway Company against John F. Stroub, under the "Condemnation Act," (Code Civil Proc. c. 23, tit. 1.) Judgment for plaintiff. Defendant appealed, and applied for a stay pending such appeal. Application denied.

Argued before O'BRIEN, P. J., and FOLLETT and PARKER, JJ.
Davies, Short & Townsend, for plaintiff.
Edward C. Perkins, for defendant.

FOLLETT, J. In February, 1891, the plaintiff acquired the fee of the property affected by these proceedings. The defendant is in possession under a lease granted by a former owner for a term which expires May, 1897. These proceedings were begun June 23, 1892, and the defendant filed and served his answer, as permitted by section 3365 of the Code of Civil Procedure. The issue so joined was tried at a special term, and an interlocutory judgment rendered adjudicating that the plaintiff had the right to acquire the land and easement described in the petition. Subsequently commissioners were appointed to appraise the damages sustained by the defendant, and they awarded $2,720. On the 5th of June, 1893, their award was confirmed by a special term, and an order of confirmation was duly entered. The defendant refused to receive the award, and it has been deposited, pursuant to the order, with the chamberlain of the city. The defendant has appealed to the general term from the interlocutory judgment, and from all the orders granted in the proceedings, and now applies fo" a stay of all proceedings on the part of the plaintiff until the appeal is decided.

The view we take of the rights of these litigants renders it unnecessary to consider the question, much debated by the counsel for the respective parties, whether, under section 3375, the court has power to stay the plaintiff from entering into possession of the property condemned. The following is a copy of the section re

ferred to:

"Appeal may be taken to the general term of the supreme court from the final order within the time provided for appeals from orders by title 4 of

chapter 12 of this act; and all the provisions of such chapter relating to appeals to the general term from orders of the special term shall apply to such appeals. Such appeal will bring up for review all the proceedings subsequent to the judgment, but the judgment and proceedings antecedent thereto may be reviewed on such appeal, if the appellant states in his notice that the same will be brought up for review, and exceptions shall have been filed to the decision of the court or the referee, and a case, or a case and exceptions, shall have been made, settled, and allowed, as required by the provisions of this act, for the review of the trial of actions in the supreme court without a jury. The proceedings of the plaintiff shall not be stayed upon such an appeal, except by order of the court, upon notice to him; and the appeal shall not affect his possession of the property taken, and the appeal of a defendant shall not be heard except on his stipulation not to disturb such possession.”

It will be observed that by this section, and also by section 3376, the proceedings on an appeal from a judgment are to be governed by the provisions of title 4 of chapter 12 of the Code of Civil Procedure, except in so far as they are modified by the provisions of chapter 23 of the condemnation act. The section quoted provides: "The proceeding of the plaintiff shall not be stayed upon such an appeal, except by order of the court, upon notice to him." This cuts off the absolute right of the appellant to a stay of proceedings pending the appeal, under section 1352, by simply giving an undertaking. The appellant's right to a stay pending appeal is not an absolute one, but whether it shall be granted or refused rests in the discretion of the court, and must be determined by the circumstances of each case. In this case the plaintiff owns the fee of the land, the defendant having only a leasehold interest of short duration. The right of the plaintiff to acquire the property has been determined by a judgment, and the amount awarded has been deposited with the chamberlain. The record shows that the plaintiff has expended about $250,000 on the improvement which the acquisition of this property is necessary to make available. The defendant does not tender a bond to pay the damages which will be caused by a stay in case his appeal shall be finally determined against him, and it may be doubtful whether an undertaking indemnifying against such consequences could be procured. It is not asserted that the plaintiff is not abundantly able to respond in any sum by which the damages may be increased in case a rehearing is ordered. The Code provides that any additional sum awarded shall be a lien on the land taken, which, with the sum deposited, would seem to be an ample protection to defendant. it shall be finally determined that the plaintiff is not entitled to acquire the property, it is liable for the damages, and, as before stated, it is not asserted that it is not entirely able to make the damages good. Without discussing or determining the question of power, we think the application must be denied, with $10 costs. All concur.

If