
    HILDRETH v. LERCHE.
    
      N. Y. City Court, Special Term and Chambers;
    
    November, 1889.
    ■1. Appeals from surrogate's court; undertaking.] The provision of Code Civ. Pro., section 1309, that an action shall not he maintained upon an undertaking given upon an appeal, until ten days have expired since the service of a written notice upon the attorney, of the entry of a judgment or order affirming the judgment or order, does not apply to appeals taken from orders or decrees made by the surrogate. The Code provides for a complete system of appeals from the surrogate’s court, and the provisions relating to appeals from other courts have no application to appeals from that court.
    "2. Action in undertaking in surrogate's courts The filing of the order of the surrogate, under section 2581, authorizing a party to commence an action on an undertaking, is the only prerequisite to such action.
    Motion for an order over-ruling the demurrer as frivolous, and for judgment thereon.
    The will of John G. Bethune was admitted to probate in the surrogate’s court, on June 11, 1886, and the widow appealed to the General ¡Term of the supreme court from ■the decree of probate. On such appeal an undertaking for •costs was given by the defendants in this action, Albrecht -J- Lerche and Joseph Ludwig, to the plaintiffs, as proponent •of the said will, and the same was filed with the clerk of the surrogate’s court. The General Term affirmed the decree of the surrogate, with costs. Thereupon a judgment •of affirmance and for costs was perfected, and the surrogate •caused an order to be entered granting leave to plaintiffs to bring an action on the aforesaid undertaking. An action was commenced, and defendants interposed a demurrer to the complaint on the ground that the same did not state facts sufficient to constitute a cause of action.
    
    
      
       The complaint in this action was in the following form:—
      I. That heretofore and on the 11th day of June, 1886, a decree of' judgment was duly given and entered in the surrogate’s court of New York County, admitting to probate as a valid will of real and personal property the certain paper dated January 28, 1884, propounded by these plaintiffs as the last will and testament of John G. Bethune, late of the City of New York, deceased; whereby the objections interposed by the widow and contestant, Blise Bethune, were in all things overruled.
      That thereafter the said contestant Blise Bethune on August 2, 1886, appealed to the General Ter mof the supreme court, 1st department, from the aforesaid decree on probate.
      II. That upon the said appeal the defendants herein duly made, executed and filed with the clerk of the court for the use of these-plaintiffs as the persons aggrieved, their written undertaking pursuant to sections 2577 and 2581 of the Code of Civil Procedure, and in conformity therewith, a copy of which undertaking is hereto annexed as &. part of this complaint and marked exhibit “ A.”
      III. That subsequently by an order of said appellate court made on. the 6th day of March, 1888, said decree appealed from was in all things affirmed with costs to these plaintiffs as the respondents, and against the said appellant, Blise Bethune, amounting as taxed to the sum of $93.74;. and thereupon a judgment of affirmance accordingly and for the aforesaid costs in favor of these plaintiffs and respondents, and against said Blise Bethune as appellants, was duly perfected on the 9th, day of April, 1888, wherein and whereby it was adjudged among other-things that these plaintiffs as the respondents therein named recover the-aforesaid costs of and from the said contestant, Blise Bethune, as the appellant therein.
      IV. That no part of said costs in the sum of $93.74, thus awarded to and for which judgment was entered in favor of these plaintiffs as. aforesaid had ever been paid.
      V. That heretofore and by an order duly made and entered by the-surrogate of New York County, of date May 13, 1884, these plaintiffs,, as t;.e persons aggrieved by the taking of the aforesaid appeal, were-authorized to bring an action on the aforesaid undertaking given by the--defendants herein against them and each of them as the sureties executing the said undertaking.
      Wherefore, these plaintiffs demand judgment against the defendants above named and each of them for the sum of $98.74, with interest ’therein from April 9th, 1889, besides the costs of this action. '
    
   Holme, J.

I do not think the notice required by section 1309 applies to appeals taken from orders or decrees made by the surrogate. Article 4, title 2, chapter 18 of the Code provides a complete system of appeals from orders or •decrees made in the surrogate’s court, altogether distinct from the provisions in reference to appeals from other courts. Section 2581 provides that the surrogate may at any time in his discretion authorize any person aggrieved, to bring an action upon an undertaking, given on appeal from an order or decree in his court, and this seems to be the only prerequisite to the cause of action provided for in the article of the Code relating to such appeals.

The plaintiff in this case having been thus authorized to bring this action, I think the demurrer bad.

Motion granted, with costs, and judgment may be entered by plaintiff.  