Court of Appeals.

[Nov.

MATTER OF LYMAN.

[161 N. Y. 119; 55 N. E. 408.]

(Court of Appeals, Nov. 28, 1899.

APPEAL AND ERROR- MOTION FOR REARGUMENT OF APPEAL.

Where the commissioner of excise, admitting the correctness of a decision, asks for a reargument on appeal for the reason that he did not appear upon the argument of the case, but submitted his points, and failed to notice the objection that a forfeiture of a tax certificate could only follow a criminal conviction, and omitted to present any argument or authorities upon the subject, and that such a construction of the statute will greatly embarrass bim in the administration of the law, it will not be granted, but the court will not regard itself as concluded by what has been stated in the opinion whenever a case involving the same question arises.

Motion for reargument. Denied.

For former opinion, see 160 N. Y. 96; 54 N. E. 577; ante p. 9.

Mead & Stranahan, for the motion. J. F. Bullwinkle, opposed.

O'BRIEN, J. The counsel for the commissioner of excise have applied for the reargument of this case. The motion papers seem to admit that the decision is right, and the only purpose of the motion is to correct some errors that it is said inhere in the reasons upon which the decision was based, and to show that, so far as the opinion asserts that the right to revoke a tax certificate depends upon a criminal conviction, it is based upon an erroneous construction of the statute. It is not the usual practice to permit rearguments in this court for the purpose of correcting some error in the reasoning of the court as expressed in the opinion, when it is admittd that the decision itself is correct. There are doubtless many cases where a reargument

might be asked if that practice was adopted. But it is stated in the moving affidavits, and not denied, that upon the argument of the case in this court the appellant did not appear to argue the case, but submitted his points, and that the counsel for the commissioner failed to notice the objection that a forfeiture of a tax certificate could only follow a criminal conviction, and, consequently, omitted to present any argument or authorities on that subject. It is further stated that this construction of the statute, if sustained, will greatly embarrass the commissioner in the administration of the law. In view of these considerations, we think that it is only fair to the commissioner to say that with respect to the point upon which he desires to present further argument we ought to regard the question as still open for further discussion whenever it arises in an actual controversy presented, so that in a case involving the same question coming here we will not regard ourselves concluded by what has been stated in the opinion. It will then be open to the counsel for the commissioner to make such arguments on that point as he may be advised. This disposition of the motion for a reargument avoids the necessity for a rehearing in a case which it is admitted has been rightly decided, without at the same time foreclosing further discussion on the question referred to, whenever such discussion shall be necessary to the disposition of an actual controversy. The motion for a reargument should therefore be denied, but without costs. All concur. Motion denied.

Court of Appeals.

[Oct

MATTER OF ROBINSON.

[160 N. Y. 448; 55 N. E. 4.]

(Court of Appeals, October 24, 1899.)

1. APPEAL-CERTIFIED QUESTIONS-EXTENt of Review.

On appeal upon certified questions the answer of the Court of Appeals will be limited to the questions as raised by facts disclosed by the record and the questions certified will be construed so as to exclude any abstract proposition included therein.

2. SURROGATE'S COURT-POWERS-COMPENSATION OF SPECIAL GUARDIAN. The Surrogate's Court has no power to award a special guardian, even when appointed on its own motion to represent an infant party to an executor's accounting, any compensation for his services, out of the general estate of the decedent, in excess of the costs authorized by Code Civ. Pro. §§ 2557-2561.

NOTE.-CERTIFICATION OF QUESTIONS TO COURT OF APPEALS.

In Grannan v. Westchester Racing Ass'n., 153 N. Y. 449; 47 N. E. 896, the Court of Appeals adopted for the decisions of questions certified to it, under subdivison 2, § 190 of the Code of Civil Procedure, the rules established by the Supreme Court of the United States for the decision of certified questions. 1. The question certified should be a distinct point or proposition of law, clearly stated, so that it can be definitely answered without regard to other issue or questions and should be a question of law only. 2. If a question is stated in such broad and indefinite terms that it will admit of one answer under one set of circumstances and a different answer under another, or if it presents merely an abstract proposition and no facts are disclosed in the record which show that it arose in the case, the court should decline to answer it.

The jurisdiction to review certified questions does not include abstract questions nor those not actually determined by the court certifying them. Such questions will not be answered if certified.

Schenck v. Barnes, 156 N. Y. 316; 50 N. E. 967.

Coatsworth v. Lehigh Valley R. Co. 156 N. Y. 451; 51 N. E. 301.

Hearst v. Shea, 156 N. Y. 169; 50 N. E. 788.

Matter of Coatsworth, 160 N. Y. 114; 54 N. E. 665.

Appeal from an order of the Appellate Division of the Supreme Court, Second Department (40 App. Div. 30; 91 St. Rep. 523; 57 Supp. 523) affirming a decree of the Surrogate's court of Kings County denying compensation, in excess of costs, to special guardian of infants upon an accounting by executors and trustees. Affirmed.

R. Burnham Moffat, appellant in person.

The surrogate's Court has inherent power to appoint a guardian ad litem independent of statute.

Brick's Estate, 15 Abb. Pr. 12; Kellett v. Rathbun, 4 Paige, 102; Foster v. Wilbur, 1 Paige, 537; Smith v. Lawrence, 11 Paige, 206; Tilden, Matter of, 6 Civ. Pro. 15.

This is an incidental power of the Court.

Blackstone's Commentaries, Book 3, Chap. 27; Kent's Commentaries, Vol. 2, page 229; Clark v. Gilmanton, 12 N. H. 515; Mockey v. Grey, 2 Johns. 192; Pew v. Hastings, 1 Barb. Ch. 452; Heermans v. Hill, 2 Hun, 409; Van Alen v. Hewins, 5 Hun, 44; Bailey v. Hilton, 14 Hun, 6; Dobke v. McClaran, 41 Barb. 491.

CERTIFICATION OF QUESTIONS TO COURT OF APPEALS,-continued.

When a case is sent to the Court of Appeals upon special questions that otherwise is not reviewable, the questions should be so framed that the answers will determine the entire controversy involved in the appeal and not merely a part of it.

Blaschko v. Wurstur, 156 N. Y. 437; 51 N. E. 303.

While confined to the exact question certified the Court of Appeals will examine the record, not only to see that the question actually rose, but also to see how it arose, so that it can be decided as it was presented to the Courts below.

Baxter v. McDonnell, 154 N. Y. 432; 48 N. E. 816.

Where the question of law certified to the Court of Appeals is whether the Supreme Court had jurisdiction of the action, the question as to whether the Court might have properly declined to entertain jurisdiction cannot be determined.

Davis v. Cornue, 151 N. Y. 172; 45 N. E. 449.

Under § 191 sub. 2, Code Civ. Pro. the particular questions need not be certified on which the Appellate Division allows an appeal from its unanimous decision. Such an appeal comes before the Court of Appeals in the same way as though allowed by a judge thereof.

Young v. Fox, 155 N. Y. 615; 50 N. E. 279; 5 N. Y. Ann. Cas. 189.

This rule was recoognized in proceedings for an executor's accounting in Decker v. Elwood, 3 T. & C. 48; Campbell v. Thatcher, 54 Barb. 382; Sipperly v. Baucus, 24 N. Y. 46.

The power to appoint implies the power to compensate.

Matter of Trust, N. Y. Law J. Jany. 26, 1892; Matter of Powers, Surr. Dec. 1888, page 134; Matter of Wadsworth, 6 Supp. 932; 24 St. Rep. 416; Forster v. Kane, 1 Dem. 67; Matter of Marshall, 19 St. Rep. 156, 2 Supp. 868. Such a guardian is not the same as a party to the action.

Sinclair v. Sinclair, 13 M. & W. 640; Morgan v. Thorne, 7 M. & W. 400; Bryant v. Livermore, 20 Minn. 313; McDonald v. McDonald, 24 Ind. 69; Bank of the U. S. v. Ritchie, 8 Pet. 129; Anon. 2 Hill, 417.

There is a distinction between such guardians in probate proceedings and on the settlement of an executor's account.

Forster v. Kane, 1 Dem. 67.

The compensation of the special guardian is payable from the general estate.

Weed v. Paine, 31 Hun, 10; Roberts v. N. Y. Elev. R. R. Co., 12 Misc. 345; 67 St. Rep. 386; 33 Supp. 685; S. C. 155 N. Y. 31; 49 N. E. 262; Osborne v. McAlpine, 4 Redf. 1; Schell v. Hewitt, 1 Dem. 249.

The cases of Union Ins. Co. v. Van Rensselaer, 4 Paige, 85; Gott v. Cook, 7 Paige, 521; Doremus v. Crosby, 66 Hun, 125; 49 St. Rep. 808; 20 Supp. 906; Matter of Holden, 126 N. Y. 589, 27 N. E. 1063; 33 St. Rep. 504; are distinguishable.

CERTIFICATION OF QUESTIONS TO COURT OF APPEALS,-continued.

Where the order of certification expressly refers to the opinion of the Appellate Division, such opinion becomes a part of the record for the purpose of determining the questions considered by the Appellate Division. Pringle v. Long Island R. Co. 157 N. Y. 100; 51 N. E. 435.

While neither constitution nor statute requires it, convenience suggests that questions certified to the Court of Appeals should be separately stated so as to be answered "yes" or "no". A compound question, alternative in form should not be framed.

Devlin v. Hinman, 55 N. E. 386.

The court divided the offending question and answered the several parts. Upon a motion for leave to appeal to the Court of Appeals, pursuant to § 191 of the Code of Civil Procedure, the questions of law which the moving party desires to have reviewed by that Court must be definitely and concisely stated in the notice of motion.

Harroun v. Brush El. L. Co. 14 App. Div. 19; 77 St. Rep. 1155; 43 N. Y. Supp. 1155.

For note on what is appealable to the Court of Appeals under the New Constitution.-See 3 N. Y. Ann. Cas. 276.