
    In the Matter of the Application of William F. Kelly, Respondent, for the Revocation of the Letters Testamentary of William Paschal Langevin, as Executor and as Trustee, or Alleged Trustee, of the Estate of Rose Hynes Rooney, Deceased, Appellant.
    Second Department,
    November 15, 1912.
    Executors and administrators — removal for misconduct, etc.— demurrer— order directing intermediate accounting not appealable — adjournment of hearing.
    Where in a special proceeding by a beneficiary under a will for the revocation of letters to an executor and trustee because of misconduct, waste and irresponsibility, the surrogate grants an order overruling the executor’s demurrer to the sufficiency of the petition and further directing him to file an intermediate account of his proceedings as executor, such order not affecting a substantial right of the executor, is not appealable. The mere fact that the surrogate adjourned the hearing of the petition until after the intermediate accounting did not aggrieve the executor. There is no pleading in the procedure of Surrogates’ Courts technically known as a demurrer.
    Appeal by William Paschal Langevin, as executor, etc., of Rose Hynes Rooney, deceased, from an order of the Surrogate’s Court of the county of Nassau, as resettled, entered in said Surrogate’s Court on the 16th day of March, 1912, overruling the appellant’s demurrer to the sufficiency of the petition herein.
    
      
      William Paschal Langevin [J. Gale Needham with him on the brief], appellant in person.
    
      Stephen H. Keating, for the respondent.
   Jenks, P. J.:

This is a special proceeding brought by Kelly as a beneficiary under the will of Eooney and as a party interested in Eooney’s estate, for revocation of letters to the executor and trustee for misconduct, waste and irresponsibility. The executor filed a “demurrer” and then as of course an answer. The appeal is from the order of the surrogate “overruling said Executor’s Demurrer to the sufficiency of the petition herein and further directing said Executor to file an intermediate account of his proceedings as such executor,” and from “each and every part of said order.” We are not aware that in the procedure of the Surrogates’ Courts there is any pleading technically known as a demurrer. Eedfield on Law and Practice of Surrogates’ Courts (7th ed. § 87) says: “Demurrers, as distinct forms of pleading, are unknown to the procedure of Surrogates’ Courts; but the end contemplated by a demurrer, in a civil action, may be reached by a formal motion to strike out a pleading for insufficiency appearing on its face. • Indeed an objection of that sort may be taken informally at any stage of the hearing, and the question of the sufficiency of the pleading will then be determined; the theory in these courts being that pleadings are addressed to the surrogate, for him to pass upon before they are pleaded.” Any objection which the person cited desired to make could have been taken by answer to the petition. (Eedf. Surr. [7th ed.] §§ 87,439.) But we will consider that the so-called “demurrer ” was by way of formal motion to strike out, or of objection, aside from the matters put in issue by the answer. But the appellant had best look to it that the points raised by the “demurrer” appear upon the record in technical form, if he desire to reserve his right of review.

Appeals from the surrogate and his court are both authorized and limited by statute (Code Civ. Proc. chap. 18, tit. 2, art. 4). As this appeal is not from a decree, it must if available be from an order affecting a substantial right. (Code Civ. Proc. § 2570.) But we think that an order of the surrogate which in effect refuses to dismiss a special proceeding merely upon the issue joined does not affect a substantial right. (See Matter of Soule, 46 Hun, 661; Matter of Phalen, 51 id. 208; see, too, Susz v. Forst, 4 Dem. 346, 349.) We think that an order which simply directs an intermediate account is not appealable. Although the point was considered, but not decided in Matter of Hurlburt (43 Hun, 311-314), yet it was said that there was no substantial right affected. In Matter of Gilbert (104 N. Y. 200) the court, per Finch, J., held that the order in question did involve a substantial right, hut in effect seemed in accord with our view, inasmuch as the court say: It went beyond a mere direction to account where assets are admitted and their amount is the sole controversy, and adjudged, against the defendant’s denial, .that there were assets and settled the only substantial point of the litigation except the amount of damages to be awarded.” For the ground of the substantiality in that case that the administrator had denied that he had any assets in his hands is absent from the case at bar.

The surrogate had the power to order, sua sponte, an accounting. The order recites, “ from which- petition, affidavits and exhibits, as well as from the records of this court, it appears that eighteen (18) months have elapsed since letters were, issued to said William Paschal Langevin and that no account has been filed by him as said executor or as said trustee or alleged trustee, and that no special proceeding on a petition for a judicial settlement of his account as said executor or as said trustee or alleged trustee, is pending.” (See Code Civ. Proc. § 2725, subd. 4; Matter of Kennedy, 143 App. Div. 839; Redf. Surr. [7th ed.] § 916.) The mere fact that the surrogate .adjourned the hearing of .the petition until after the intermediate accounting did not aggrieve the appellant. (Estate of Henry, 9 Civ. Proc. Rep. 100.)

The appeal is dismissed, with costs to the respondent to be paid by the appellant personally.

Burr, Thomas, Woodward and Rioh, JJ., concurred.

Appeal dismissed, with costs to the respondent, to be paid by the appellant personally.  