In re the Application for a Compulsory Accounting in the Estate of Appell

Greenbaum, J.:

It seems to us that the order of reference was inadvertently granted by the learned surrogate. Section 2768, subdivision 8, of the Code of Civil Procedure defines a “ judicial settlement ” as follows: “The expression, ‘judicial settlement,’ where it is applied to an account, signifies a decree of a Surrogate’s *632Court, whereby the account is made conclusive upon the parties to the special proceeding, either for all purposes, or for certain purposes specified in the statute; and an account thus made conclusive is said to be ‘ judicially settled.’ ” The same section, subdivision 9, defines “ intermediate account ” as follows: “ The expression, ‘ intermediate account,’ denotes an account filed in the surrogate’s office, for the purpose of disclosing the acts of the person accounting, and the condition of the estate or fund in his hands, and not made the subject of a judicial settlement.”

In Matter of De Russy’s Will (14 N. Y. Supp. 177; affd., 128 N. Y. 619) a former General Term of this department said: “ It is a significant omission that no authority has been provided for the examination of an intermediate account of an executor or administrator by means of a reference.”

The filing of objections to the intermediate account was premature as was also the appointment of the referee.

Inasmuch, however, as it appears that considerable testimony has been taken by the referee touching the objections filed, we are of the opinion that it will be a saving of expense and in the interest of the estate to maintain the status quo, but to stay all further proceedings under the order of reference as well as all proceedings under the orders heretofore made by the Surrogates’ Court, from which three appeals, are now pending in this court until the determination of said appeals.

An order will be entered in accordance with the foregoing views.

Clarke, P. J., Laughlin, Dowling and Merrell, JJ., concur.

Order modified as directed in opinion and as so modified affirmed. Settle order on notice.