
    John J. Riley, Appellant, v. David Ryan, as Administrator, etc., of Alice R. Farry, Deceased, and Others, Respondents.
    
      Claim against a decedent’s estate —■ appeal by the administrator from a judgment thereon f'or the claimant — withdrawal of such appeal and payment of the judgment by the administrator — motion by certain of the next cf kin, made parties to the action, to mcate the judgment, eta., unless the appeal be reinstated—power of the Surrogates Court.
    
    A person having a claim against the estate of an intestate recovered judgment thereon against the administrator of such estate, from which judgment the administrator appealed to the Appellate Division. Subsequently, on motion of the administrator, his appeal was dismissed. Thereafter two of the next of kin of the intestate, claiming that the dismissal of the appeal was the result of connivance between the administrator and the claimant, procured an order making them parties to the action. After the granting of the latter order, the administrator paid the claimant’s judgment in full and procured the discharge of the same. The next of kin before mentioned then secured an order providing that the judgment establishing the claim he vacated and set aside and a new trial of said claim be granted, unless the attorneys for the claimant and the administrator would consent to the reinstatement of the appeal from such judgment.
    Upon the hearing of the motion resulting in such order, it was not established that the dismissal of the appeal was the result of fraudulent connivance between the claimant and the administrator.
    
      
      Held, that the order should be reversed;
    That if, as claimed by the next of kin, they were necessary parties to the action „ in which the judgment was rendered, the judgment would not be effective against them and the administrator would be liable to them for any improper distribution of the estate;
    That if they were not necessary parties to the action in which the judgment was rendered, they were not entitled to complain of the omission to appeal;
    That, in any event, an improper distribution of the funds of the estate could be regulated upon the administrator’s final accounting before the surrogate.
    Appeal by the plaintiff, John J. Riley, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Columbia on the 25th day of Rovember, 1904, as resettled by an order entered in said clerk’s office on the 16th day of January, 1905.
    
      J. Frank Chace, for the appellant.
    
      John L. Crandell, for the respondents.
   Parker, P. J.:

This is an appeal from an order made at Special Term vacating a judgment rendered by a referee appointed under section 2718 of the Code of Civil Procedure.

Judgment was rendered in favor of the claimant and against the administrator of the estate of Alice R. Parry, deceased, and was entered up on July 27, 1903. The administrator appealed .from such judgment, but subsequently and on June 30, 1904, moved to dismiss the appeal, and an order was entered in the Appellate Division on the same day to that effect.

Alice Hughes and Maggie Tansy, two of the next of kin of the deceased, complain that they have been prejudiced by such disrnissal, and charge that such dismissal was brought about by connivance between the administrator and the said claimant; and on the 2d day of July, 1904, they procured an order, at Special Term, bringing them in as parties to that action. Subsequently to the granting of that order the administrator paid to the claimant, in full, the judgment from which the appeal had been taken, and procured a dis-= charge of the same. The said next of kin thereupon made a motion at Special Term and procured the order from which this appeal is taken. The order directs that the judgment entered upon the report of the referee, and the satisfaction thereof which was filed July 8, 1904, and the report of the referee, and the order appointing the referee, and all the proceedings therein, be vacated and set aside, with ten dollars costs to the said Alice Hughes and Maggie Tansy, and that a new trial be granted, unless the attorneys for the claimant and the administrator, within ten days, consent that the appeal which was dismissed be reinstated and the same be restored to the calendar of the Appellate Division.

The notice of motion upon which this order was granted stated five different grounds upon which it was claimed that the order should be allowed. The first was, in substance, that the referee had improperly allowed an amendment of the claim filed. The secohd, that the referee had no power or jurisdiction to render judgment upon such amended claim. The third, that the judgment rendered materially differed from that asked for in the claim filed. Evidently such grounds, while they might be reasons for reversing the judgment on appeal, are not grounds authorizing another Special Term to vacate it. The other turn grounds are based entirely upon the charge of a fraudulent connivance between the administrator and the claimant, by which the appeal was dismissed in order to prevent the said next of kin from having the benefit of a reversal of the judgment.

It is apparent, from the record, that no such fraudulent connivance was established at Special Term. It is not insisted upon now that it was there proven, and the judge at Special Term, in the opinion then written, states that no such facts have been established before him. (See Riley v. Ryan, 45 Misc. Rep. 151, 153.) It is clear, therefore, that the grounds stated in the notice of motion are utterly insufficient to warrant the order granted.

If, as claimed by these respondents, they are necessary parties to the action in which such judgment was rendered, its rendition will not be effective against them, and the administrator will be liable to them for any improper distribution of the- estate the same as if it „ had not been rendered, and if not necessary parties then it is difficult to see upon what theory they can claim the right to intervene, or complain of the omission to appeal.

In any event any improper distribution of the funds of the estate can be regulated upon the administrator’s final accounting before the surrogate. '

The order appealed from ivas unwarranted and should be reversed, with ten dollars costs and disbursements.

All concurred.

Order reversed, with ten dollars costs and disbursements.  