(dissenting): •
I am Unable to-concur in the decision reached by the other members Of this court. Henry Aiders died on the 1st day of April, 1899, leaving him "surviving no widow, children, adopted Children or -the issue of such, and ho parents. He is survived by tile petitioners, his only "nephews' and nieces, and by certain collateral kin, the issue of various Uncles and aunts, Consisting of children, grandchildren and greatgrandchildren. William M; Hoes, public administrator and administrator of Henry Alders, deceased, has.;accounted to- the surrogate, and a decree was entered on the 21st day of June, *2911901, settling the accounts of the! public administrator and directing the distribution of certain sums to the relatives of the deceased. The pétitioners appeal from the'order of the' surrogate denying a motion' to modify the decree.
The decree of the Surrogate’s Court which the petitioners seek to have modified directed that five-elevenths of the estate be distributed to them, and that six-elevenths be paid to the collateral relatives. The petitioners are all residents of Germany, and did not appear on the accounting, service having been made upon them pursuant to section 19 of chapter 230 of the Laws of 1898, by service upon the consul-general of Germany on their behalf, and the amounts directed to be paid to them by the said decree were received by the German ■ consul-general, their duly authorized attorney in fact. ' It appears that certain of the remote relatives, the respondents herein, who were served by publication, upon the accounting, as their respective places of residence were not known, have not appeared or claimed the sums directed to be paid them under the decree. The shares remaining unpaid aggregate-about $880. The petitioners do not seek to compel the public administrator to repay any sums which . may have been paid to any.'of the remote relatives, but' it is their purpose to have the decree so modified ás to permit of the distribution of the sum now oh hand to the petitioners, on the ground that under the'decision of the Court‘of Appeals in Matter of Davenport (172 N. Y. 459) these remote relatives were not entitled to any part of the-estate of the- decedent.
Section 2743 of the Code of Civil Procedure provides that where the validity of a debt, claim or distributive share is admitted or has been established upon the accounting or other proceeding in the Surrogate’s Court or other court of cdmpetent jurisdiction, the decree must determine to whom it is payable, the sum to be paid by reason thereof, and all other questions-concerning the same, and that “ with respect to the matters enumerated in this section the decree is conclusive as a judgment upon each party to the special proceeding who was duly cited or appeared, and upon every person deriving title-from such .party.”- If it be conceded, therefore, that the collateral relatives, under the decision in Matter of Davenport . (supra), are not entitled to any share of the decedent’s estate, it cannot be said that the court was without jurisdiction,-for it is made *292the duty of the Surrogate’s Court to determine to.whom the fund, is payable, and the decree is made conclusive, subject, of course, to-the right of review. ■ The court had jurisdiction of the subject-matter and of the persons of the petitioners,, who wéiie duly cited. . The- petitioners have' accepted the determination of the court by receiving without question the amounts found to be due and directed to be paid-by the decree, and if -there was a mistake in fixing the amount, due to a misunderstanding of the law, this is not a jurisdictional defect, but an error to be corrected on appeal. . (Matter of Underhill, 117 N. Y. 471, 479.) The-petitioners have accepted the portion decreed to them, have remained passive from the 21st day of June, Í901j to the 26th day of April, 1906, and. by this special proceeding attempt to set aside á conclusive judgment in favor of the' respondents. . .,
It is urged that the Surrogate’s Court han discretion, under the. provisions of- section. 2481, subdivision 6, of the Code Of Civil Procedure, to modify, Correct or vacate, its own- decrees. We may assume this to be-the case, and yet we may-not be .authorized, upon . a review of the decree, to direct that this discretion shall be exercised in a particular way. There can be no doubt that upon an .appeal from the Special Term this court is called; upon to review upon the merits all orders resting in discretion ; but this rule is not applicable to appeals from another and distinct tribunal such as the Surrogate’s Court. There our appellate authority, is confined to errors of law or to matters of substantial right which are not dependent Upon the discretion of such court. Where, as here, the surrogate is expressly clothed with discretion, the -utmost, that-can be claimed is that we may review his action so far as to. ascertain whether “ there has been an abuse of discretion ,aiid; a violation of .justice.’’ (Matter of Adler, 60 Hun, 481,483, citing Matter of Selleck, 111 N. Y. 290. See, also, Matter of Blum, 83 App. D.iv. 161,162.) ■It certainly will-not be contended, that this appeal presents a question of law, or that it involves a matter of substantial right, not dependent upon the discretion of the court. The' Surrogate’s Court having exercised its discretion and denied -the application, is there authority in this ; court. to say-that there has been such an abuse -of that discretion as to warrant interference ?. -The only right claimed is that the surrogate had the discretion; not that-there was . *293any absolute right, and, as pointéd' out, óür authority does not extend ió the correction of discretionary powers in the Surrogate’s Court. The Court of Appeals in Jacobs v. Morange (47 N. Y. 57, 60). quotes Chancellor Kent, with approval, as follows: “ A subsequent xdecision of a higher court, in "a different case, giving a different exposition of a‘point .of law from the one declared and known when á settlement between parties takes place, cannot have a retrospective effect and overturn, sucli settlement. Every man is to be charged at his peril with a knowledge of the law.”
That is the situation here. The only possible ground for reversing the order now before this court is that a higher court in another case has declared the law differently from what it was supposed to be when the decree of the Surrogate’s Court was made" back in 1901. It is in effect giving a right of appeal years after all right of appeal has expired and after the rights of the respondents had been judicially and conclusively determined. The petitioners are presumed to know the law. The decision Of the Court of Appeals in Matter of Davenport (supra) did not change the law nor declare that the law was void and of no effect, but merely declared what the law was, what- it had been all the time and as it would have been determined in the matter now before us if it had been brought to the attention of the court in proper timé and form. The petitioners having permitted the' time for appeal to go by and awaited an appeal on the part of others in a different case,' it can hardly be said that there has been an abuse of discretion on the part of the Surrogate’s Court in refusing to grant the relief asked for if it be assumed that the court below had the discretionary power. The due enjoyment of property rights and the repose of titles, which that enjoyment requires, renders it necessary that the adjudications of legal tribunals, upon which rights to á large extent rest, should not be lightly disturbed or arbitrarily sét aside and vacated after long lapse of time for errors which should have been discovered and remedied' at the time' of their perpetration. (Matter of Hawley, 100 N. Y. 206, 210.) In the case cited it was held that ‘under'the provisions of section 2481 of the Code of Civil Procedure (fóllbwing a previous case) there is no relief from an erroneous or irregular decree, except upon the ground of fraud, clerical mistake, newly-discovered evidence or other like cause: With these prin*294ciples in mind it is . difficult, to justify a determination that the petitioners are entitled to a distribution of the funds in the hands of the public administrator, although in this particular case it is probably true that no one would be injured by the reversal. But it is a. bad precedent to establish, contrary, I believe, to, sound .. policy and to the' law of this State and I, therefore, diss’ent from the determination. ■
Order reversed and motion granted as stated in opinión, without costs. . Settle, order on notice.