
    
      In re Campbell. In the matter of the probate of the will of Ebenezer Campbell.
    
      (Supreme Court, General Term, Third Department.
    
    May 17, 1888.)
    Trial—Of Issues on Reversal of Surrogate’s Decree—Entry of Decree on Verdict.
    After the trial, at circuit, of issues framed under Code Civil Proc. § 2588, on the reversal of a surrogate’s decree, it is erroneous for the circuit judge to make an order for judgment and for costs. The verdict should be certified to the surrogate, as was provided by 2 Rev. St. marg. p. 67, § 74, (59,) who makes his decree accordingly, and awards costs .in conformity with Code Civil Proc. § 2558.
    Appeal from circuit court.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      A. D. Wait, for appellants. D. M. Westfall, for proponent.
   Learned, P. J.

Probate of the will was refused by the surrogate. On appeal the decree was reversed, and issues were ordered to be tried. Code, § 2588. The issues were settled in the order of reversal, and were subsequently tried. The verdict on these issues was in favor of the proponent. Thereupon the proponent obtained an order for judgment and for costs from the circuit judge, from which order the opponents appeal. The order was irregular. Section 2588 is but a re-enactment, in substance, of 2 Rev. St. marg. p. 66, § 72, (57.) And section 74 (59) shows that the verdict of the jury was to be certified to the surrogate, who was to make his decree accordingly. That is the proper course now. The circuit court, before which the issues are tried, has only to certify the verdict to the surrogate. Action thereon should be had by that officer. There is nothing in section 2585 which contradicts this view. That section makes the appeal from the surrogate’s court similar to appeals from a county court- In such appeals, if the judgment below is reversed, the case is sent back for a new trial. So in this case,—only the new trial is to be had before a jury, instead of being had before the surrogate. And a jury trial is had before a court suitable for that purpose. But, after the issues have been decided, then it is the surrogate who grants or refuses probate accordingly. So the subject of costs is provided for by section 2558, which in its first subdivision refers to the provisions of section 2589. Thus the matter of costs rests with the surrogate, unless the appellate court has acted when it decided the appeal. The right to give costs of the appeal is with the general term, which heard the appeal. Section 2589. How those costs are to be payable may be decided by that court, or, if such direction is not given, then by the surrogate. But the circuit court and special term have nothing to do with the rendering a decree of probate, or with the granting of costs.

The order is reversed, with $10 costs, and printing disbursements, without any prejudice to the action of the surrogate on the verdict and as to costs.

Langdon and Ingalls, JJ., concur.  