In re Gilman's Estate , 42 N.Y. St. Rep. 474 ( 1892 )

Bookstayer, J.

The sole ground for the motion, and for this appeal from the order denying it, is that the decree should have been made by a judge of this court, as such, and not by the judge at special term. It seems to us that this is merely a contention as to the form of the decree, and does not involve any question as to the propriety or soundness of any of the provisions of the decree. It was settled on notice to appellant, and she should then have raised this question. If she did, then the matter was passed upon by the judge who heard the motion and settled the decree, from which, we were informed on the argument, she promptly appealed. On the argument of that appeal, this question can be brought up. The decree was settled August 7, 1888. But this motion was not made until the 23d day of March, 1891, more than two years and a half after the decree was entered. Her loches should, therefore, preclude her from any relief, unless the court was absolutely without jurisdiction to make the decree in the form it did. This question has been fully and carefully considered by the learned chief judge, and we fully agree with him in the conclusion to which he arrived, and the reasoning by which he reached that conclusion.

It only remains to notice some of the authorities cited by appellant’s counsel in support of his contention. Pruyn v. Lynch, 44 Hun, 587, came before the general term of the third department upon an appeal from the county court, which was pending on the 1st of September, 1880, the original judgment having been rendered by a justice of the peace at a date still earlier. The question before the general term did not involve any question of jurisdiction, but was as to proceedings merely; hence the comment of the court as to what was “the intentions of the saving clauses in the Code of Civil Procedure” must be confined to the particular question under consideration. In Re Estate of Weston, 91 N. Y. 502, the court of appeals had under consideration the question as to whether the old law or. the new controlled the surrogate in the matter of the amount of costs and allowances to be awarded. There was no question before the court which rendered it necessary to determine whether any of the sections of chapter 18 of the Code, relating to matters of jurisdiction, were or were not covered by the exempting clause of section 3347, and the learned judge who delivered the opinion of the court expressly excepts “certain sections, ” which did not affect the question of costs, from consideration. For this reason we think the language of the court must be regarded as relating to the details of proceedings merely. In Mills v. Hoffman, 92 N. Y. 185, the question was whether the surrogate in rendering a decision in a proceeding commenced in May, 1880, was required by the Code, which was in effect at the time of rendering the decision, to make findings of fact under section 2545. This section again relates to details of proceedings, and not to jurisdictional matters, and upon that question only was the effect of subdivision 11 of section 3347 considered critically. We therefore think that the language of the court should be regarded as relating to matter of proceedings, and not as having in view any question of jurisdiction, for that was conceded in the case. We therefore think, the order should be affirmed, with costs.