¶1This appeal is premature. The surrogate had power, under section 2546 of the Code of Civil Procedure, to make the original order of reference, and his action in appointing a referee thereunder is not the subject of review. In re Pearsall, (Sup.) 4 N. Y. Supp. 365. . Still less is his present action the subject of review. The order appealed from required the referee to proceed with the accounting as originally directed, and made no final disposition of the matter. When the referee has reported under this direction, and his report has been confirmed or set aside, and a final order of the surrogate made thereon, there will be a proper subject of review; but not until then. The matter at present is simply under investigation; none the less so because the surrogate set aside a report under the original order of reference which, if confirmed, would have been final. If the surrogate, in setting aside this report, had made a final order, that would have been ieview*19able, but when he set it aside with directions to proceed anew under the principles laid down in his opinion, the whole matter was left in abeyance until che coming in of a further report, and until a final order is made upon such further report. The appeal should therefore be dismissed, with $10 costs and disbursements.
19 N.Y.S. 18
In re Post
Decided May 13, 1892
New York Supreme Court · decided 1892-05-13
<p>Appeal from surrogate’s court, New York county.</p> <p>Judicial settlement of the account of Henry A. Y. Post, as administrator of Edwin Post, deceased, which latter in his lifetime was administrator with the will annexed of Cornelia Post. From an order .of the surrogate referring the matter back to a referee who had previously been appointed to examine the administrator’s account and the objections thereto, and to determine all questions arising upon the settlement of said account which the surrogate has power to determine, Henry A. Y. Post, administrator, appeals.</p> <p>For decision appealed from, see 9 H. Y. Supp. 449. For decision on appeal from the order of the surrogate resettling and amending the order sending the report back to the referee to proceed with the accounting, see 14 H. Y. Supp. 205. For decision on appeal from order denying a motion to allow Jane Eliza Davis, as administratrix with the will annexed of Cornelia Post, deceased, to file nunc pro tune her requests to find, and the rulings of the referee thereon, see 18 H. Y. Supp. 812.</p>
Appeal dismissed · Decided 1892-05-13