Olmsted v. Long , 17 Abb. N. Cas. 320 ( 1885 )

The Surrogate.

This, is an application made under the provisions of subd. 6 of § 2481 of the Code, which declares that the Surrogate shall have power “ to open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause.” Applications under this' subdivision are becoming very frequent, and it is, therefore, of much importance that an effort should be made to put a proper construction upon the sentence quoted. There would be no difficulty in this respect, were it not for the semicolon following the first clause. It would seem that that clause gives the power “ to open, vacate, modify, or set aside, or to enter as of a former time, a decree or order ” without any assigned cause for its exercise ; and that then, by the latter clause, a new trial or a new hearing may be granted “for fraud, newly discovered evidence, clerical error, or other sufficient cause.” The first clause seems to have been based upon various decisions of the late Court of Chancery and of the Supreme court, and Court of Appeals, holding that a Surrogate had the power, although not expressly conferred by statute, to vacate and set aside a decree or order which he had no jurisdiction to make (Vreedenburgh v. Calf, 9 Paige, 128); to open a decree entered by default, in consequence of mistake or accident, depriving the applicant of a hearing (Pew v. Hastings, 1 Barb. Ch., 452); to modify a decree by the correction of mistakes and clerical errors, the result of oversight or accident (Sipperly v. Bancus, 24 N. Y., 46 ; Campbell v. Thatcher, 54 Barb., 382); to vacate a decree for fraud (Yale v. Baker, 2 Hun, 468); and see Strong v. Strong (3 Redf., 477, and cases cited; also Commissioners’ note to the section).

Thus, before this section was enacted, it had been established that this court had power to open, vacate,' modify or set aside a decree for “ fraud, clerical error, or other sufficient cause,” such as a want of jurisdiction, or ah excusable default. In some of these cases, a further hearing would be had, as a necessary sequence. It would, therefore, seem that the only really new power conferred is to grant a new trial or new hearing for newly discovered evidence; which means a re-trial of the issues made by the pleadings. It is not apparent how there could be a new trial in regard to a “ clerical error,” which is usually to be found on the face of the papers—such as an error in placing or adding figures, etc. If the semicolon, whose office is to distinguish the conjunct members of a sentence, were dispensed with, and a comma substituted in its place, we should have a clearer conception of the meaning of the sentence (See Matter of Accounting of Hawley, 100 N. Y., 206). Courts will, if needful, disregard punctuation in construing statutes.

Here the application is made to open, vacate and set aside a decree duly entered, after a long litigation. A new trial or hearing, as such, is not asked for, but, according to the views, expressed, such would be the. result on granting the application, if the facts stated in the petition warranted the conclusion that evidence bearing upon the issues tried, or which an amendment of the pleadings would permit trying, has been discovered since such trial, or that the decree was obtained by fraud. No objection as-to the regularity of the proceedings leading up to the decree has been taken, except that two of the creditors of the deceased had not been cited-in the matter. Proof was furnished that one of them was duly cited, and as to the other, instead of there being anyfproof that he is a creditor, it appears from the account of the administratrix that he had been paid out of certain Fort Lee Park and Ferry stocks which he held as collateral ; that the stocks had been sold, he paid, and the balance of the proceeds, amounting to about $875, duly accounted for by the widow. A copy of the account which the administratrix,, the grandmother of the petitioner rendered,,was annexed to the petition in the proceeding to mortgage, etc. So that this'petitioner then, and throughout the litigation, had a complete knowledge of what had been done by the administratrix, as such. .

But he claims that he has recently discovered, solely on information and belief, that the deceased held some leases on real estate in the city of New York, the net rental value of which is sufficient, with certain other available funds, to pay the debts established in this proceeding. Section 2755 of the Code provides that an heir or devisee of the property in-question, or á person claiming under either, may contest the necessity of applying the property to the payment of debts, may contest the validity of any debt, and may interpose any defense to the whole or any part thereof. No defense was interposed by any person, of any character, except such as related to the validity and amount of the debts. It is not now shown that the petitioner or his. father, who has made an affidavit touching the leases, ever saw any such leases, or any record thereof, nor are their contents made known. The father of the petitioner, and his grantor, was a witness on the stand in the chief proceeding, and testified to certain entries in a book kept by the deceased, with a view to establishing a payment on one of the. claims .then in litigation. The affidavit he now makes is to the effect that the same book contained an entry of the deceased in regard to these leases. It would thus seem that, if there are any such leases in existence, he- possessed all the knowledge he ever had on the subject when that proceeding was pending, and the information of the petitioner in regard thereto was doubtless derived from his father. The allegations of the existence of ' any such leases rest wholly, fh information and belief, and are of such a character as not to warrant this court in opening the decree. There is no evidence showing that they were in force at the time of Charles Olmsted’s death, or that he had not disposed of them in his lifetime. The account rendered by the administratrix shows that she had no knowledge of them ; and Cyrus Olmsted was a party to that proceeding and interposed no objection. As the grantor, in possession of the intestate’s book on which he says the entries were made relating to these leases, and which entries furnish all the knowledge he pretends to have on the subject, it was his duty, for the protection of himself and his grantee, to have raised the question now presented, when he had the book in his hand, and was testifying to other entries therein. A solemn adjudication, made after hearing all parties interested, cannot be disturbed on such uncertain evidence as is furnished, based mainly on information and belief. The evidence must be so clear and positive as to satisfy the mind of the court, that, if offered pending the trial, it would have changed the result. This is the reasonable rule established by superior courts, on a motion for a new trial. And here, a new trial would result, were the application granted on the ground under consideration.

If it be claimed that the administratrix was guilty of a fraud in not accounting for these leases, the answer is that there is no evidence whatever on which to base such a charge. There is no evidence to establish the existence of such leases as assets, as has already been stated, and if there were, there is no proof that she ever had any knowledge of them. To warrant the court in setting aside the decree for fraud, the evidence of the fraud must be clear and conclusive.

Another reason assigned for setting aside the decree is that a check for some $1,359, being part proceeds of a sale of lands in which the intestate had an interest, in an action for partition, was directed by the Supreme court, in which the action was pending, to be applied toward pajdng the claim of E. B. Long, the chief creditor. This check, Cyrus Olmsted states, in his affidavit, he has in his possession; how long he has had it does not appear. The first question which naturally arises is—why has it not been, and is it not now, applied to its designated purpose ? With it, however, this court has here nothing to do. It is not pretended that it is assets of the intestate, over which this court has any control. Besides, the order of the Supreme court on the subject was made long after the commencement of the proceeding to mortgage, etc., and after the rights of the respective parties had come into existence. No order of that court could affect those rights then about to be ascertained and established; although it was, doubtless, competent for one to tender, and the other to receive, the check or the amount it represented.

The petitioner charges that his attorney was guilty of gross neglect in not bringing to the knowledge of this court the facts on which he now bases his claim for relief. That attorney ably and zealously contested the crfeditor’s claims, and there is no evidence to show his knowledge of such facts. If he had such knowledge, he must have derived it from his client, and that would contradict the statement of the petitioner that he hqd " recently ” himself discovered them. But this is a matter between attorney and client, with which this court has nothing to do.

I can, therefore, discover no cause for granting the prayer of the petition, or in any way disturbing the decree in question.

The motion is denied, with ten dollars costs.