In re Dunn , 1 Dem. Sur. 294 ( 1882 )

The Surrogate.

Doubtless, the petitioner intended to pray for an order allowing the petitioner and those whom he represents to intervene and become parties to the action now pending, or parties to the proceeding which was pending in this court. Believing such to be the order sought, and regarding it as having been properly prayed for, I think this court has no power to grant it. It was held in Foster v. Tyler (7 Paige, 48), that, in such case, the person desiring to be made a party must apply to the court in which the proceeding was, at the time, pending. This was followed in Marvin v. Marvin (11 Abb. Pr., 97).. These cases were decided when the R. S. were in force. Under the present Code, I think the practice is in no way changed, but is expressly recognized by § 2513, which provides that such parties may be brought in by an order of the appellate eourt. The Supreme Court is the ■ “appellate court” of the Surrogate’s court, and it is in that court'this cause is now pending». Independently of the section above cited, I think the Supreme Court has ample power, under section 452 of the Code, to furnish the relief supposed to be sought.

Ordered accordingly.