Frane v. Vantine , 23 N.Y. Sup. Ct. 528 ( 1879 )

Talcott, J.:

This was a claim in behalf of the administratrix of Elizabeth Rocket against the defendants, as executors of Samuel Beeman, deceased.

The claim having been presented to the defendants as such executors was disallowed, and with the consent of the surrogate, under the statute in such case provided, was referred to a referee, who decided that there was due and owing to the plaintiff, as the administratrix of the said Elizabeth Rockett, the sum of $194.63, with interest from December 30, 1873, and that tbe plaintiff was entitled to judgment therefor.

At a Special Term held in Erie county on the 7th day of August, 1878, the plaintiff moved that the said report be confirmed, and for judgment on the same.

It appears by the order granting the said motion that the attorney for the defendant appeared on the said motion and consented that the same should be granted, and thereupon the said report having been, by consent, confirmed, the plaintiff entered judgment thereon, and from the judgment thus entered the defendants bring this appeal.

This presents the precise question discussed in Smith v. Velie (60 N. Y., 106). The case fails to show that the appellants made any motion at the Special Term, upon a case or otherwise, to set the report aside, or for a new trial, or any opposition to the confirmation of the report of the referee; but, on the contrary, shows that the order confirming the report, and for judgment thereupon, was entered by the consent of the appellants.

But, unlike the case of Smith v. Velie, supra, the respondent does take the objection here that the case was not presented to and passed upon by the Special Term, and that there was no objection then made to the confirmation of the report. This objection is apparently fatal to any attempt by the General Term to review the decision of the referee. (See the case of Smith v. Velie, supra, and the case of Somerville v. Crook, 9 Hun, 664, and the cases there cited.)

The appeal should be dismissed, with costs to the respondent.

MulliN, P. J., and Smith, J., concurred.

Appeal dismissed, with costs to the respondent.