¶1I do not think the notice required by section 1309 applies to appeals taken from orders or decrees made by the surrogate. Article 4, tit. 2, c. 18, of the Code provides a complete system of appeals from orders or decrees made in the surrogate’s court, altogether distinct from the provisions in reference to appeals from other courts.' Section 2581 provides that the surrogate may at any time, in his discretion, authorize any person aggrieved to bring an action upon an undertaking given on appeal from an order or decree in his court, and this seems to be the only prerequisite to the cause of action provided for in the article of the Code relating to such appeals. The plaintiff in this case having been thus authorized to bring this action, I think the demurrer bad. Motion granted, with costs, and judgment may be entered by plaintiff.
10 N.Y.S. 238
Hildreth v. Lerche
City of New York Municipal Court
Decided November 7, 1889
City of New York Municipal Court · decided 1889-11-07
At chambers. Action by J. Homer Hild reth against Albrecht J. Lerche and Joseph Ludwig,as sureties in an undertaking given on appeal, by Elise Bethune, testator’s widow, from the decree of the surrogate’s court of New York county, admitting to probate the will of John G. Bethune, deceased, the decree appealed from having been affirmed. 48 Hun, 614, mem.
Decided 1889-11-07