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Matter of Fuller

Appellate Division of the Supreme Court of New York, Second Department
Nov 1, 1929
227 App. Div. 801 (N.Y. App. Div. 1929)

Summary

In Matter of Fuller (227 App. Div. 801; affd., 254 N.Y. 519, without opinion) the Appellate Division, Second Department, reversed a surrogate's decree and ordered a former decree opened and modified "in the interests of justice," writing a memorandum acknowledging the limited scope of section 20, subdivision 6, of the Surrogate's Court Act, and citing in that behalf Matter of Brennan (supra).

Summary of this case from Matter of Droney

Opinion

November, 1929.


Order of the Surrogate's Court of Queens county made and entered June 6, 1929, denying the application of appellant for an order reopening and amending the final accounting decree entered on September 21, 1928, and directing the executors and the Bowery Savings Bank to pay or deliver to appellant as a legacy or gift the residue of the estate on deposit with said Bowery Savings Bank, amounting to $13,859.75, with interest, and that said order provide it be delivered without any deduction for services of Benjamin T. Hock, as attorney for the executors, rendered since the entry of said decree, reversed upon the law and the facts, without costs, and application granted, without costs. Appellant, upon the advice of his former counsel, and in ignorance of his right to elect to receive the principal of the fund ( Matter of Cole, 174 App. Div. 534; affd., 219 N.Y. 435; Matter of Bertuch, 132 Misc. 731; revd., 225 App. Div. 773), permitted the decree to be entered in its present form. While the surrogate is vested with the jurisdiction (Surrogate's Court Act, § 20, subd. 6) to vacate or modify a decree only in respect to the things specified in the statute and for causes of like nature ( Matter of Brennan, 251 N.Y. 39 ), the right to reopen or modify in the interests of justice is not open to question. ( Matter of Henderson, 157 N.Y. 423.) This court is of opinion that the facts justify its exercise in the case at bar. Rich, Seeger and Scudder, JJ., concur; Lazansky, P.J., and Young, J., dissent.


Summaries of

Matter of Fuller

Appellate Division of the Supreme Court of New York, Second Department
Nov 1, 1929
227 App. Div. 801 (N.Y. App. Div. 1929)

In Matter of Fuller (227 App. Div. 801; affd., 254 N.Y. 519, without opinion) the Appellate Division, Second Department, reversed a surrogate's decree and ordered a former decree opened and modified "in the interests of justice," writing a memorandum acknowledging the limited scope of section 20, subdivision 6, of the Surrogate's Court Act, and citing in that behalf Matter of Brennan (supra).

Summary of this case from Matter of Droney
Case details for

Matter of Fuller

Case Details

Full title:In the Matter of the Judicial Settlement of the Account of HENRY B. FULLER…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 1, 1929

Citations

227 App. Div. 801 (N.Y. App. Div. 1929)

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