We can find no authority for this appeal. The order, which the appellant seeks to review, was made in a special proceeding before the surrogate of New York and is not final. The respondent claimed to be a creditor of the appellant's testator, and filed a petition for the judicial settlement of the accounts of the appellant as executrix and that she be cited to show cause why she should not render and settle her account, and setting forth all the facts essential to confer jurisdiction upon the surrogate to issue the citation. Upon the return day the appellant appeared and filed a verified answer to the petition, alleging facts, which, if true, very clearly established that the respondent was not a *Page 53 creditor of the estate and not entitled to institute the proceeding, and that his demand had been duly rejected upon presentation, and that the six months Statute of Limitations had intervened to bar an action upon the claim. The respondent then filed the affidavit of herself and her attorneys by way of reply, showing that no notice of the rejection of the claim had been served upon her or them. The surrogate thereupon made an order requiring the appellant at a future day to appear in his court and make and file an account of her proceedings as executrix and attend before him from time to time as might be necessary for that purpose. It is from that order that the present appeal has been taken. The record further shows that the appellant neglected to obey the order of the surrogate and did not appear at the time named and render an account, and the respondent applied, upon an affidavit setting forth the default, for an order requiring the appellant to show cause why a warrant of attachment should not issue against her and her letters be revoked, which was granted. Upon the return of that order the appellant appeared and filed an affidavit, substantially reiterating the claim made in her answer to the first petition, that the respondent had no valid debt against the estate, and also alleging that a copy of the order requiring her to account had not been served upon her and she could not, therefore, be regarded as in default. The surrogate overruled this objection and, in a written memorandum filed, held that the statute did not require service of the order and that the account must be filed within five days thereafter, or a warrant of attachment would issue. This memorandum had none of the qualities of an order, but was in effect simply a continuance of the proceeding until the day named as a favor to the executrix and to enable her to comply, if she so elected, with the provisions of the original order. The appellant has treated this memorandum as in itself an order, and in her notice of appeal has appealed therefrom as well as from the original order for an accounting. *Page 54
The General Term very properly dismissed that part of her appeal, and it remains to be considered whether the order of the General Term, affirming the order for an accounting, is appealable here. It is very plain that this is not a final order within the purview of sub. 3 of section 190, but simply the initial step in a special proceeding in the Surrogate's Court. The point of the appellant's contention, if we correctly apprehend it, is that the surrogate had no jurisdiction to make the order requiring her to account upon the petition of the respondent; that when it appeared by her sworn answer that the respondent had no valid claim and was not a creditor of the estate, as that term is used in the statutes relating to proceedings in Surrogate's Court, the surrogate could not lawfully proceed further in the matter, but was bound to dismiss the proceedings, or at least to suspend action therein until the respondent had established her status as a creditor in another tribunal. It might be argued that as the question is one of jurisdiction it would be a more orderly procedure to have it first finally determined, otherwise the appellant might be compelled to render an account which the surrogate had no authority to require, and while the question might be raised upon an appeal from the decree, it would be too late to afford the appellant an adequate remedy. But if she is right in her position that the surrogate is devoid of jurisdiction, she may decline to render the account, and permit an order to be entered directing a warrant of attachment to be issued and her letters revoked, which would be such a final adjudication in the proceeding as to be appealable here. This she seems to have started out to do, but for some reason did not wait until final action had been taken, but brought the present appeal, which, we think, is ineffectual for the purposes of review in this court.
The appeal must, therefore, be dismissed, with costs.
All concur, except FINCH and PECKHAM, JJ., not voting.
Appeal dismissed. *Page 55