Matter of Clark

The respondent was one of the executors and trustees under the will of Philip S. Dorlon, who died in May, 1886, leaving an estate amounting to more than two hundred thousand dollars. The respondent's brother, Elias G. Dorlon, a co-executor and trustee, had the active management of the estate until his death, which occurred February 15, 1899. Shortly afterwards this proceeding was instituted by Mary H. Clark for the removal of the respondent as such executor and trustee. On September 19, 1899, the issues raised by the petition and answer herein were referred to a referee to take proof relative to the matters in issue and to report the same to the surrogate with his conclusions thereon. On April 16, 1900, the referee made his report, in which he reported and filed the evidence taken by him, and added what he denominated "findings of fact and findings of law," among which was a finding that none of the charges set forth in the petition was sustained. To this report the petitioner filed exceptions. A motion for its confirmation returnable before the surrogate May 8, 1900, was then made, and the hearing was duly adjourned until the eighteenth of the following June, when it was finally submitted. No decision was rendered until November twenty-first, when the surrogate made findings of fact and conclusions of law justifying the removal of the respondent, and refused to confirm the report of the referee. On November twenty-second a decree was entered removing the respondent, and the decision and decree of removal were served upon his attorney on the same day. December twenty-second the respondent appealed from that decree to the Appellate Division. On the same day he served a two days' notice upon the appellant's attorney of his intention to present to the surrogate a decree confirming the report of the referee under the last sentence of section 2546 of the Code upon the ground that before the decision by the surrogate as to the confirmation, modification or rejection of the referee's report more than ninety days had elapsed since the final submission of the motion January 4, 1901, the surrogate made an order denying that motion. On the ninth of the same month the respondent also appealed from that order.

The determination of this appeal involves the construction or proper interpretation of section 2546 of the Code of Civil Procedure. That section conferred authority upon the surrogate, in his discretion, to appoint a referee to take and report the evidence of the facts, whose report was made subject to confirmation, approval, modification or rejection by the surrogate. The contention of the respondent is, and the learned Appellate Division in substance held, that the effect of the last sentence of that section was to limit the power of the surrogate to act upon the report to ninety days after its submission, and in default thereof that he lost all jurisdiction to determine the issue between the parties. That was upon the theory that that sentence is self-executing and after ninety days the report became a final determination of the issue. This interpretation involves the conclusion that the purpose of that provision was not merely to provide a method to expedite proceedings like this, but also to limit the jurisdiction of the surrogate therein to ninety days by substituting the unconfirmed report of the referee in place of the decision of that officer after that time. In determining the effect which should be given to this statute, such an exposition should be adopted as will carry into effect the purpose of its enactment. To ascertain its real intent and meaning, we should consider the condition of the law before the act was passed, the mischief or defect not then provided for, the remedy provided, and the reason for it. The substantial provisions of section 2546 were first enacted in 1870, but limited to the Surrogate's Court of the city of New York. Subsequently, they were made applicable to the whole state and finally adopted as a part of the Code of Civil Procedure. After they were thus adopted, and until 1895, they remained substantially as now, omitting the last sentence. But by chapter 796 of the laws of that year, the section was amended by adding the following sentence: "A referee's report must be passed upon and confirmed, approved, modified or rejected by a surrogate within sixty days after it has been submitted to him." That sentence was amended by chapter 607 of the Laws of 1899 so as to read: "Unless a referee's report is passed upon and confirmed, approved, modified or rejected by a surrogate within ninety days after it has been submitted to him, it shall be deemed to have been confirmed as of course and a decree to that effect may be entered by any party interested in the proceeding upon two days' notice." As the section stood before its last amendment, it is obvious that it could not be properly held that a decision by a surrogate and a decree thereon could not be entered after sixty days had elapsed since its submission. It then contained no provision indicating what proceedings, if any, could be taken upon the failure of the surrogate to act upon the report within that time. It was that defect the law-making power sought to remedy. To that end it changed the section to its present form, thereby providing a course of procedure to be adopted in case the report was not acted upon as the statute required. We do not think that by the last amendment the legislature intended that after the expiration of ninety days the surrogate should be ousted of jurisdiction to act upon the report, certainly not, unless the parties took some steps to invoke the remedy provided by the section before a decision by the surrogate was made and entered. If the interpretation of the Appellate Division is sustained, it would seem necessary to find some cause or purpose within the range of reasonable conjecture, if not of reasonable probability, which induced the legislature to absolutely substitute the unconfirmed report of a referee appointed to take and report the evidence upon the facts in place of the determination and decree of a surrogate, upon whom alone the statute confers power to institute and determine such a proceeding. This statute, as construed by the Appellate Division, would permit parties interested to remain silent until they ascertained the decision of the surrogate, and if adverse, then, for the first time, to avail themselves of the procedure provided by the section, notwithstanding the fact that he had already acted upon the report and entered a proper decree thereon. Again, so construed, it would enable a surrogate by merely delaying his decision, to avoid its responsibility and impose upon a referee selected by him the duties which the law has absolutely conferred upon the surrogate. If that contention be correct, it is also difficult to understand why any notice of the intended entry of a decree is required, as the party to whom such notice is to be given would be entirely powerless to prevent its entry, although neither he nor the surrogate was in any way responsible for the delay. A construction which would admit of such results not only seems inconsistent with the evident purpose of the statute but quite absurd. It is much more reasonable to suppose that the object and purpose of this amendment was to expedite the determination of questions at issue before surrogates, and place it within the power of either party to bring the proceeding to a determination, so far as the report of the referee is concerned, upon two days' notice, unless before that time the report is confirmed, modified or rejected. We think the section was not intended to deprive parties of their right to the judicial action of the surrogate, but that its obvious purpose was to expedite decisions in this class of referred cases and to provide a means by which any interested party could enforce promptness of action. If a party might reman silent until after a decision, regardless of the length of time the proceeding has been delayed, and then be permitted to enter an order as of course confirming the report, the clear intent of the section would be defeated. When the whole section is read together we think it discloses an intention, after ninety days, to place the control of the time within which the report shall be confirmed, modified or rejected by the surrogate, in the hands of the parties who, upon giving the proper notice, may have it confirmed as of course unless the surrogate has previously passed upon it. If this report was absolutely and finally confirmed by the expiration of ninety days, it would necessarily follow that the time for the surrogate to act could not be extended by consent of the parties, by waiver, express or implied, or by an order of the court, whatever the exigencies might be. But as under this section no decree confirming the report can be entered except upon two days' notice, we think until that notice is given and a decree entered in pursuance of it the proceedings remain open and undetermined. Doubtless the surrogate could be compelled to enter a decree of confirmation if presented after the expiration of ninety days and before he had acted thereon. But it by no means follows that during that time he is powerless to perform any proper judicial act relative to such report. Neither actions nor special proceedings can be terminated otherwise than by a final order or judgment. (Van Arsdale v. King, 155 N.Y. 325, 328.) Hence, it is evident that until a decree of confirmation is entered, the report is not conclusive or binding. It is made so only by a decree. Until then no other or subsequent proceedings can be taken. As the report is not conclusive until the entry of either a voluntary or compulsory decree confirming it, it is manifest that the statute is not self-executing but requires some action either by the parties or surrogate to render it final. If this conclusion is correct, it follows that the surrogate still retained jurisdiction with power to take any proper action in the proceedings, at least until one of the parties sought to avail himself of the remedy provided by the statute, and that his action thus taken is not void or voidable. After jurisdiction has been once acquired the provisions of law fixing the time for intermediate steps are to be deemed directory, and a disregard of them does not avoid the proceedings. "In other words, as the cases universally hold, a statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory, unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered as a limitation of the power of the officer." (Sutherland on Statutory Construction, § 448; Matter of the Empire City Bank, 18 N.Y. 199; People v.Allen, 6 Wend. 486; Jackson v. Young, 5 Cow. 269; Wood v.Chapin, 13 N.Y. 509; Stewart v. Slater, 6 Duer, 83;Canniff v. Mayor, etc., of N.Y., 4 E.D. Smith, 430; Ex parteHeath, 3 Hill, 42; Juliand v. Rathbone, 39 N.Y. 369;Hupfel v. Schœmig, 2 J. S. 476; Stafford v. Ambs, 8 Abb. N.C. 237; White v. Coulter, 3 T. C. 608; Matter ofHennessy, 164 N.Y. 393, 397.) In Matter of the Empire CityBank it was held that the provision of the statute there under consideration, limiting the time for a referee to make his report, was merely directory, and that an extension of the period beyond the statutory time did not work a discontinuance of the proceeding. Stewart v. Slater, Hupfel v. Schœmig andStafford v. Ambs are to the effect that the provision of the Code which requires a judge by whom a cause is tried without a jury to file his decision within twenty days after the trial is also merely directory. In White v. Coulter it was decided that the provision of the Code requiring a judgment to be entered within four days after the decision was merely directory. InMatter of Hennessy, where this court recently considered the provision of the Election Law requiring that a final order of the court reviewing the determinations and acts of the officers with whom certificates of nominations are filed must be made fifteen days before election, it was held to be directory, and that where the court acquired jurisdiction its order was effectual, although made after the expiration of that time. In that case it was said: "In construing statutes all the provisions thereof should be considered and, so far as possible, each provision harmonized with the other so as to give effect to the legislative intent and the purpose sought to be accomplished. In reaching this result courts will treat some provisions as mandatory and others as directory in order to give force and effect to them all." This court has likewise held that section 1019, which requires a referee to deliver his report within sixty days, did not end the power of the referee to render a report after that time, unless the notice required by that section was served (Gregory v.Cryder, 10 Abb. Pr. [N.S.] 289, 296), and in Livingston v.Gidney (25 How. Pr. 1), where an earlier statute of like purport was involved, the same doctrine was held, and it was also held that the omission might be waived and was waived by a party who saw fit to wait for the report without objecting to the delay. Applying the principle of those cases to the statute under consideration it becomes quite obvious that the provision unless the report is acted upon within the time specified a decree confirming it as of course may be entered upon two days' notice, does not directly or by implication indicate a legislative intent that the action of the surrogate after the time specified is void. To give this statute that effect would require the importation into it of words it does not contain, and would give but little, if any, effect to the provision requiring two days' notice before a decree could be entered as of course. Under the circumstances, and in view of these considerations, we are of the opinion that the omission of the surrogate to confirm, reject or modify the referee's report until more than ninety days had elapsed after its submission, did not oust him of jurisdiction of the proceeding or deprive him of the power to make and enter the decree removing the respondent, and that having made it before the respondent took any steps to procure one confirming the report upon the ground of lapse of time, it was valid and should be upheld.

Moreover, there is another ground upon which we think the action of the surrogate should be sustained. As we have hitherto seen, on the twenty-second of November, 1900, the decision and decree of removal had been made and copies personally served on the attorney for the respondent. Twenty days later he appeared in person before that officer, asked to be allowed to file his final judicial account as "former executor and trustee," and was given time for that purpose. Two days later he filed his account and served the same upon the attorneys for the appellant. Subsequently the appellant served objections and the matter was adjourned until January 4, 1901. The account rendered by the respondent recited the fact that upon the refusal of the surrogate on the twenty-second of November, 1900, to confirm the report of the referee, the respondent was removed and a decree to that effect entered. On the twenty-second of December, thirty days after the service of that decree, the respondent appealed therefrom, and on the same day, for the first time, served a notice under section 2546 of his intention to procure the entry of a decree confirming the referee's report under the provisions of that section. Thus for sixty days after the expiration of the time allowed to the surrogate to act, and thirty days after he had acted, refusing to confirm it, and had made a decree removing the respondent, the latter took no steps in the proceeding, except in acquiescence and submission to such decision. It is a general, if not universal, rule that where power to act in a tribunal exists, and the only objection to its exercise is one intended for the benefit and designed for the protection of the party complaining, such objection must be taken at the earliest practicable opportunity after the party becomes aware of the facts on which its validity depends, or it will be held to have been waived by the omission to urge it seasonably. "In civil cases a party may stipulate away all his rights, questions of jurisdiction as well as others, and he may do this by express agreement, by acts inconsistent with the objection, or by his silence and omission to present the proper points when he ought to object." (Cowenhoven v. Ball, 118 N.Y. 231, 235; Vose v.Cockcroft, 44 N.Y. 415; Fisher v. Hepburn, 48 N.Y. 41;Hilton v. Fonda, 86 N.Y. 339; Matter of N.Y., L. W.R.R.Co., 98 N.Y. 447, 453; Shaffer v. Riseley, 114 N.Y. 23;Brady v. Nally, 151 N.Y. 258, 264.) Within the principle of these authorities we think the acts, conduct and silence of the respondent constituted a waiver of any right he may have possessed to require the entry of a decree as of course confirming the report of the referee.

The surrogate was justified in declining to confirm the report of the referee, as, of course, upon the further ground that he had already acted upon the report by rejecting it, so far as the so-called findings were concerned, and upon the evidence had made and entered what, in the absence of the evidence reported, must be treated as a proper decree thereon. After having thus made a decree by which the proceeding was finally terminated, he could not be required to act upon the report for a second time while that decree remained unreversed. In other words, the decree made was a final determination of the proceeding before him, and no intermediate order therein could be properly granted until the decree already made was vacated or set aside. The surrogate having made and entered a final decree his power to act upon the report was spent, and he could not be required to re-examine it; certainly not until an application was made to vacate or set it aside, which was not done.

These considerations lead us to the conclusion that the order of the Appellate Division should be reversed, and the orders of the surrogate affirmed, with costs.