In the Matter of Proving the Last Will and Testament of Lizzie H. Holme, Deceased. Leicester Holme, Contestant, Appellant; Edwin C. Hall, as Executor, etc., of Lizzie H. Holme, Deceased, and Others, Respondents.
(Supreme Court, Appellate Division, First Department,
April 9, 1915.)
Subbogate’s Coubt—Contested pbobate pbooebdings—When contestant NOT ENTITLED TO SET ASIDE PROCEEDINGS AS UPON A DEFAULT.
Where, after the adjournment of a contested probate proceeding before a surrogate of New York county at Trial Term, an order was granted by the other Surrogate at Chambers, in violation of an oral stipulation made before the first surrogate, and in contravention of the provisions of the Code of Civil Procedure, allowing the contestant to file a new answer demanding a jury trial to be held after the adjourned date, the parties appear before the surrogate at Trial Term on the adjourned date and the contestant refuses to proceed, and deliberately abandons the case, and the will is duly admitted to probate, the contestant is not entitled to set aside the proceedings as upon a default.
Appeal by Leicester Holme, contestant, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Oourt on the 4th day of March, 1915, denying his motion to vacate and set aside a decree admitting to probate the will in this proceeding, and granting letters testamentary thereon, and also from an order entered on the 9th day of March, 1915, denying his motion for a reargument.
Edmund L. Mooney of counsel (John Delahunty, attorney), for the appellant.
Payson Merrill of counsel (Charles Thaddeus Terry with him on the brief), Merrill & Rogers, attorneys, for the respondent Hall.
*63William R. Conklin of counsel (Harry D. Holden with him -on the brief), Conklin & Reid, attorneys, for the residuary legatees, respondents.
J. Mayhew Wainwright, for the respondent American Society for Prevention of Cruelty to Animals.
Samuel J". Wagstaff, special guardian, for the respondents Annie Molloy, Jr., and others.
Clarke, J.
After the proceedings outlined in the opinion in this same matter (167 App. Div. 237), handed down herewith, the case was regularly called before Mr. Surrogate Fowler, holding the Trial Term, upon Monday, January eighteenth, to which date the trial had been adjourned pursuant to the stipulation made in open court referred to. On the morning call of the calendar counsel asked for an adjournment until the afternoon until the new counsel could be present, which was granted. At two o’clock the contestant, his attorney and counsel were present and the case was again called. Whereupon the proceedings had, which have been outlined in the opinion referred to, were called to the attention of the surrogate presiding. The contestant took the 'position that this case was to be tried before a jury under the order granted. The surrogate stated that he had seen no such order and that he had made no such order; “ That the learned surrogate sitting at Chambers must have been under a misapprehension. I can hardly assume that the order has been made, but if it has been made, I will vacate that order. Are you ready for trial ? ” Counsel for contestant stated that “ under the circumstances we are forced to withdraw ” and thereupon contestant and his attorney and counsel left the court' room. The witnesses were thereupon called and fully examined and the will was admitted to probate arid letters testamentáry 'issued thereunder. Subsequently *64the contestant moved to set aside the prohate and the proceedings as upon a default. But there was no default. There was a deliberate abandonment of the case after it had been set down for trial upon stipulation made in open court and it is not to be treated as an inadvertent default. For that abandonment the appellant has exhibited no satisfactory excuse.
The orders appealed from should each be affirmed, with ten dollars costs and disbursements to the respondent.
Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.
Orders affirmed, with ten dollars costs and disbursements.