The first question requiring consideration is whether the appellant was brought within the provision of the statute which provides that, on a petition, etc., praying for a decree revoking letters, the executor may be cited to show cause why a decree should not be made accordingly “ where he has willfully refused, or, without good cause, neglected to obey any lawful direction of 'the surrogate contained in a decree or order, or any provision of law relating to the discharge of his duty.” (Code Civ. Proc. § 2685, subd. 3.) By order made November 16,1895, pursuant to an order to show cause, founded upon petition of a legatee, the Surrogate’s Court directed that the executors file a supplemental account on or before November 30,1895. This order was not actually entered until the thirteenth day of December following, and a copy of it was on that day served *196on the appellant’s attorney. As the time of the entry and service of the order was subsequent to that designated for filing the supplemental account, it is insisted that the order was not effectual as a direction to the appellant for such purpose. This contention would be well founded if he had not appeared by counsel at the time the " motion was heard and orally stipulated in open court to file such supplemental account on or before the thirtieth day of the month. It also appears by the affidavit of such counsel that thereupon the surrogate directed that such account be filed on or before that day. As this was an order made in open court, with the knowledge aud consent of the party represented by counsel, the entry or service of it was not essential to give it the effect of a lawful direction of the surrogate to him. The entries ancl records of the proceedings are supposed to be kept by the clerk of the Surrogate’s Court the same as are those of other courts of record. Orders when made are deemed in his custody for entry and, in legal contemplation, are entered as of the time they are made by the court. A different view may be taken of an order made by a judge out of court for the purposes of basing further proceedings upon it. Hence the entry of ail order is essential to an appeal when the order is made by a judge out of court. (Id. § 1304.) This order, not expressly appearing in the outset to have been made in the then pending proceeding for the judicial settlement of the accounts of the executors, was afterwards so resettled as to show that it was made in such proceeding, and the order was so entitled nuno pro tunc. The default of the appellant was in his failure to file his supplemental account within the time prescribed by the order. It is urged on the part of the appellant that the filing of a supplemental account could not be lawfully directed without the institution of a new proceeding by citation. That may have been so if the proceeding for the accounting had not then been a pending one. Its pendency enabled the Surrogate’s Court to direct that accounting be completed so far as practicable by filing further accounts. This is an inherent power incident to the proceeding for a judicial settlement of the accounts of executors and administrators, and it may be required without the aid of a citation, although, if essential to recall attention of any of the parties interested to the matter, for the complete disposition of the further account, a citation may, and of course will be, issued for such pur*197pose. But, as the direction, to file the supplemental account was made in a pending proceeding, the rule that a citation is requisite to the commencement of one in that court was not essentially applicable for the support of the direction given to file such account. It is true that the proceeding had apparently been terminated by decree at the time the citation of March 6, 1896, was issued upon the petition of the legatee and devisee for the appellant to show cause why the letters issued to him should not be revoked. The' court, nevertheless, by the order made the revocation dependent upon his failure to file the supplemental account within ten days after he should be served with the order. As the citation was issued to him alone, it evidently was not intended that a new proceeding was thereby instituted, but that it was founded solely upon his willful refusal or neglect to obey the direction given by the order of November 16, 1895. The practically useful effect to be realized from the filing then of such account was to result either from the opening of the old proceeding or from thereafter instituting a new one. This, however, may not he important, since the proceeding upon which the order is founded was pending when the unobserved direction by order of the Surrogate’s Court was given and disobeyed.
The appellant, as executor, appeared pursuant to such citation, and by his answer alleged matters upon which it is insisted in his behalf that he was entitled to have a trial and decision, and, therefore, that it was error for the court to make the order which was made on the petition and answer. It would be so if any of the facts alleged in the answer, taken as true, would defeat the prayer of the petition. The appearance of the appellant was sufficient to confer jurisdiction of his person, and was effectual as such unless qualified by facts alleged showing a want of it. He alleges in his answer no facts tending to show any want of jurisdiction in that respect. It is not alleged in his answer, nor does it appear, when or where the citation was served upon him. It cannot be assumed that the service was made outside the county of Rockland. Although a nonresident of the State, he may, for aught that appears, have been served in that county. The circumstances attending the making of the order of November 16, 1895, have already been stated. The appellant does not allege any want of authority of the counsel, who did so, to appear for him when that order was made. In the view *198taken the criticism of the service of it on December thirteenth lias no essential' bearing upon the question of the validity of the order, or upon its effect as a direction to the appellant, and to charge him with the duty of obeying it in that respect. He further alleges that, as executor and as a legatee under the will, he, in December 1896, commenced an action in the Supreme Court against the executrix and others interested in the estate for an accounting and for other relief, which action was still pending. The remedy by action is not exclusive, but concurrent only with that for an accounting in the Surrogate’s Court, so far as it may be within the jurisdiction of the latter court to accomplish it. For the purposes of the question here it is not necessary to inquire whether the action may serve any legitimate purpose not within the power of the Surrogate’s Court in the matter of an accounting. . Hone of the facts alleged in the answer, taken as true, could be treated as injunctively or definitely effectual against the purpose sought by the petition, and, therefore, the Surrogate’s Court was permitted, for want of cause shown to the contrary, to make the order which followed.
Hor is it seen that, in view of the reason for the order and its purpose, any legal interruption to the making of it arose from the appeal which had been taken by two of the legatees of the will from certain provisions of the surrogate’s decree.
There is now no less occasion to permit the executor to file the supplemental account than existed at the time the order following the citation of March 6, 1896, was made. •
The order of April 13, 1896, should be so modified as to extend the time for filing the supplemental account ten days from the time of service hereafter to be made of the order, and as so modified affirmed. Let the matter be remitted to the Surrogate’s Court to proceed therein.
All concurred.
Order modified, so as to extend the time to file the supplemental account ten days after service hereafter to be made on the attorney of the appellant, and order, as so modified, affirmed, wdth ten dollars costs and disbursements, to be paid by appellant, and the proceeding remitted to the Surrogate’s Court to proceed therein.