In re the Estate of Hale

O’Brien, J.:

The proceeding is brought on petition to secure the removal of the executor and executrix of Joseph P. Hale, deceased, upon the ground of certain alleged facts of misconduct in dealing with the estate. By the answer, these were sought to be explained or denied, and the Statute of Limitations ivas interposed as a bar. Hpon the hearing the surrogate, of his own motion, made the order of reference appealed from. The reference was thus ordered by the surrogate for his own information, and was neither granted upon motion of the petitioner nor opposed by the executor and executrix. And he, having jurisdiction over the subject-matter, had the right,, of his own motion, so to order a reference to obtain needed information upon the question of fact involved, pursuant to section 2546 of the Code of Civil Procedure.

As was said by the presiding justice in The Matter of Pearsall (21 N. Y. St. Repr. 306): “ In the determination of this appeal it is not at all necessary to consider this application upon the merits. Under section 2546 of the Code, the surrogate * * * is enapowered to appoint a referee to take and report to the surrogate the evidence upon any specific question of fact, and make a report thereon, subject, however, to the confirmation of the surrogate. * * * As to the merits of the application, it is not at all necessary to consider them. After the surrogate has determined the application upon its merits, then there is time enough for us, if an appeal is taken, to consider the questions which have been so lengthily- set out in the appellant’s brief.” (See, also, The Matter of Post, 46 N. Y. St. Repr. 129.)

We think, however, that the recital in the order, that the petitioner has an unbarred claim, was improperly inserted and should be stricken out, leaving that, as well as the other questions, for the determination of the surrogate upon the coming in of the referee’s report.

The order should accordingly be modified by striking out that recital, and as so modified it should be affirmed, without costs.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.