Opinion
Argued January 4, 1956
Decided February 16, 1956
Appeal from the Supreme Court, Appellate Division, Fourth Department, PREY, S., HAGERTY, J.
Thomas L. Kelly for appellants.
John F. Nugent and John W. Ellis for respondent.
In this discovery proceeding brought pursuant to sections 205 and 206 of the Surrogate's Court Act, appellants appeal, according to their notice of appeal, by leave of the Appellate Division, Fourth Department, from a unanimous order of that court which reversed an amended decree of the Surrogate's Court of Cattaraugus County "discharging" appellants and dismissed the proceeding upon the ground that the Surrogate's Court lacked jurisdiction in a discovery proceeding to determine the issues submitted.
The appellants, although successful in the Appellate Division, lost something of considerable value by that court's reversal and dismissal of the proceeding in that they are now deprived of the lower court determination in their favor on the merits and so we hold that they are parties "aggrieved" and have standing to appeal, even without an order granting them leave to appeal since the order appealed from is final and there was a reversal in the Appellate Division (Civ. Prac. Act, § 588).
We agree with the Appellate Division that so much of the petition herein as is represented by jury questions Nos. 3 and 8 seeks merely the collection of an alleged debt and so did not raise issues within the Surrogate's jurisdiction in discovery proceedings ( Matter of Trevor, 309 N.Y. 389). In our opinion, however, the issues represented by the jury questions other than Nos. 3 and 8 were within the proper scope of discovery proceedings in the Surrogate's Court ( Matter of Stern, 306 N.Y. 862).
While the Appellate Division order makes no mention of the findings of fact below, but merely states that the reversal here was on the law, we need not remit the matter pursuant to the provisions of sections 602 and 606 of the Civil Practice Act for a consideration of the facts, inasmuch as the order of the Appellate Division incorporates by reference the Per Curiam opinion wherein the Appellate Division declares its position as to the facts as follows: "We are of the opinion that the jury by its verdict rendered proper answers to the questions submitted. We would accordingly affirm the decree appealed from if convinced that the Surrogate's Court in a discovery proceeding possesses jurisdiction to determine the issues submitted."
The order of the Appellate Division should be reversed insofar as it dismisses the proceeding with respect to the matters covered by jury questions Nos. 1, 2, 4, 5, 6, 7 and 9, and the amended decree of the Surrogate reinstated with respect thereto; as so modified, the order of the Appellate Division should be affirmed, with costs.
CONWAY, Ch. J., DESMOND, FULD, FROESSEL, VAN VOORHIS and BURKE, JJ., concur; DYE, J., taking no part.
Order of Appellate Division modified and, as so modified, affirmed, and matter remitted to the Surrogate's Court for further proceedings in accordance with the opinion herein, with costs to appellants.