de Nuber v. Millard

The appeal is from an order denying an application for a writ of mandamus requiring, the surrogate to order the payment to the consul general of Austria-Hungary of sums of money on deposit with the ■ county treasurer, and severally owned by minors, citizens and residents of the empire of Austria, and given to them by will probated in the county of Westchester, H. T. Upon the settlement of the testator’s estate the moneys were decreed to be paid to the guardian of such minors duly appointed and qualifying, and in failure thereof within a time limited,'to be deposited with the county treasurer to the credit of the minors. The consul general applied ex parte to the surrogate for an order for the payment *775of the moneys to him and the same was denied. In the proceeding for the settlement of the executor’s account the consul general appeared and was represented by attorney,' and among other things demanded that the legacies to the minors be paid to such consul general, but the same was denied, but no appeal from the decree was taken. The present application is to compel the surrogate to order done what the decree denies, that is, to decree against his decree. There was a. complete remedy open to the appellant, and he omitted to avail of it, and by this ex parte motion to the surrogate, and by this application, he is moving the surrogate to readjudicate what was adjudicated upon formal issue raised by the petitioner. However desirable it may be to have decision upon the merits by an appellate court, the matter cannot .be regarded as presented in a legal or appropriate manner.

The order should be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Burr, Woodward and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.