In re Pearsall , 21 N.Y. St. Rep. 305 ( 1889 )

Van Brunt, P. J.

In the determination of this appeal it is not at all necessary to consider this application upon the merits. Under section 2546 of the Code, the surrogate, in a special proceeding like the one at bar, is empowered to appoint a referee to take and report to -the surrogate the evidence upon any specific question of fact, and make a report thereon, subject, however, to the confirmation of the surrogate. This is all that the surrogate did upon the coming in of the appellant’s answer to the respondent’s petition in this proceeding. The appellant denied a material allegation of this petition, and the surrogate had power to determine, as far as this proceeding is concerned, whether the allegations of the petition were true or false, because upon their truth or falsity, and upon the determination of such fact, his right to proceed depended; and when the appellant denied the interest of the petitioner, the surrogate had a right to take proof upon this subject, and determine whether such interest was made out as entitled the petitioner’s application to be considered. The claim that the surrogate had no power to determine this question, even if that could be considered now, is clearly without foundation, as it is only upon the existence of certain focus that the jurisdiction of the surrogate can be exercised. The surrogate having exercised the power conferred upon him by the Code for the puspo o of determining this question, his action is not the subject of review. As to the merits of the application, it is not at all necessary to consider them. After the surrogate has determined the application upon its merits, then there is time enough for us, if an appeal is taken, to consider the questions which have been so lengthily set out in the appellant’s brief. As the case stands, the only question presented is the power of the surrogate to order a reference in a proceeding of this description. This power seems to be beyond question, and the order appealed from should be affirmed, with $10 costs and disbursements. All concur.