In re Scott , 62 N.Y.S. 1059 ( 1900 )

RUMSEY, J.

The proceedings leading up to what should have been a hearing upon the merits of this case were characterized by several irregularities, arising largely fróm the failure to appoint a special guardian of the infants before any step was taken in the matter, but, as these irregularities might have been corrected by motion before the surrogate, it is not necessary to do more than suggest them at this time.

When the trustee had served his answer to the petition, in which he raised material questions of fact, he was entitled to a trial in which common-law evidence should be given to sustain the allegations of the petition, and to an opportunity to meet that evidence by the same sort of proof. Had such a trial been had, it would have been the duty of the surrogate to make findings of fact and conclusions of law, which could only have been reviewed in this court upon appeal from his decree, if exceptions had been taken to his findings. But no such proceedings were had. The matter was-brought before the surrogate upon affidavits, and an order was made for the removal of the appellant, and no findings of fact or conclusions of law were made as required by the statute. The proceedings to.remove the appellant without such proof were clearly irregular. We think that that irregularity can be reviewed upon this appeal without any exceptions.

As it is presented here, it amounts simply to an order in a special proceeding in which the court should have required the petitioner to make proof of Ms allegations before granting the relief demanded, and his failure to do so is clearly an irregularity which can be reviewed in this court, and it calls for the reversal of this order, and the sending the matter back to the surrogate, where it may .be tried in the manner prescribed in the statute.

The order appealed from should be reversed, with costs, and the proceeding remitted to the surrogate All concur.