
    In the Matter of the Application of Alexander de Nuber, as Consul General of Austria-Hungary, Appellant, for a Writ of Mandamus against Frank V. Millard, Surrogate of the County of Westchester, Respondent.
    Second Department,
    October 11, 1912.
    Executors and administrators — settlement of executor’s accounts — decree awarding payment to alien minors — intervention of foreign consul—mandamus.
    Where in a proceeding for the Settlement of an executor’s account, the consul general of a foreign country appears and demands that legacies to certain minors, citizens and residents of his country," be paid to him, but fails to appeal from a decree of the surrogate directing the payment of the legacies to the guardian of such minors, or if none be appointed that the moneys be deposited with the county .treasurer, an application by such consul for a writ of mandamus, requiring the surrogate to order the payment to him of the moneys on deposit with the county treasurer to the credit of such minors will be denied.
    Appeal by the petitioner, Alexander de Huber, as consul general, etc., from an order of the- Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 8th day of May, 1912.
    
      Samuel Leavitt [Arpad A. Kremer with him on the brief], for the appellant.
    
      Arthur J. Burns, for the respondent.
   Thomas, J.:

The appeal is from an order denying an application for a writ of mandamus requiring, the surrogate to order the payment to the consul general of Austria-Hungary of sums of money on deposit with the ■ county treasurer, and severally owned by minors, citizens and residents of the empire of Austria, and given to them by will probated in the county of Westchester, H. T. Upon the settlement of the testator’s estate the moneys were decreed to be paid to the guardian of such minors duly appointed and qualifying, and in failure thereof within a time limited,'to be deposited with the county treasurer to the credit of the minors. The consul general applied ex parte to the surrogate for an order for the payment of the moneys to him and the same was denied. In the proceeding for the settlement of the executor’s account the consul general appeared and was represented by attorney,' and among other things demanded that the legacies to the minors be paid to such consul general, but the same was denied, but no appeal from the decree was taken. The present application is to compel the surrogate to order done what the decree denies, that is, to decree against his decree. There was a. complete remedy open to the appellant, and he omitted to avail of it, and by this ex parte motion to the surrogate, and by this application, he is moving the surrogate to readjudicate what was adjudicated upon formal issue raised by the petitioner. However desirable it may be to have decision upon the merits by an appellate court, the matter cannot .be regarded as presented in a legal or appropriate manner.

The order should be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Burr, Woodward and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  