
    SURROGATE’S COURT.
    In the Estate of James Tilby, deceased.
    
      Surrogate — Appeal — Power of the surrogate to extend the time within which to make a case on appeal— Oode of Ovoil Procedure, sections 2572, 2577.
    The requirements of sections 2572 and 2577 of the Oode of Civil Procedure and the requirements of Rules 32 and 33 of the General Rules of Practice, are entirely independent of each other, and the surrogate may at any time after the entry of the decree or order sought to be reviewed, extend the time for making and serving a case, even though the appeal has not been perfected, provided that the time for perfecting it is as yet unexpired.
    
      New York county,
    April, 1885.
   Rollins, S.

— This is an application lor an extension of time within which to make a case on appeal. It is urged in opposition that the surrogate is powerless to grant it because of the fact that the security required by section 2577 of the Code of Civil Procedure has not been filed, and that accordingly the appeal is for no purpose effectual. It is true that, for the reason specified, the appeal is as yet incomplete, but the time within which it may be perfected has not yet expired.

Rule 32 of the General Rules of Practice, provides that on appeal from this court a case must be made and served within ten days after service of a copy of the decree or order appealed from ; but it also provides that further time may be allowed by the surrogate.

Rule 33 declares that if a party omits to make a case within the time limited by Rule 32 (that is, within ten days, plus such further time, if any, as may have been allowed) he shall be deemed to have waived his right thereto.

Row, if the opposition to this application is well founded, and the time for making a case cannot be enlarged while the appeal is still unperfected, it follows that the appellant must, at the peril of utterly losing his right for a review of such alleged errors as took place at the trial, but are not part of the record, either prepare and serve a case vsdthin precisely ten days or within the ten days file security. ¡No such result can have been contemplated by the statute regulating the procedure on appeal, or by the rules of practice above cited.

Section 2572 of the Code provides than an appeal by a party must be taken within thirty days after service of the decree or order from which the appeal is taken.

Section 2577, as has been stated already, requires that an undertaking shall be given before such appeal can be made effectual.

I think that these requirements and the requirements of the rules are entirely independent of each other, and that the surrogate may at any time after the entry of the decree or order sought to be reviewed, extend the time for making and serving a case even though the appeal has not been perfected, provided that the time for perfecting it is as yet unexpired (Salls agt. Butler, 27 How. Pr., 33).

Application granted.  