
    SUPREME COURT.
    In the Matter of John Lynch.
    Surrogates— Their power over sales of real estate ordered by them.
    
    Surrogates have power to compel a purchaser of real estate to take or to discharge a purchaser from taking.
    
      Second Department, General Term, September, 1884.
    
      Joseph Fetteretch and Thomas Cook, for purchaser and appellant.
    
    
      F. E. Blackwell, for executor and respondent.
   Dykman, J.

George Wolfe became the purchaser of certain real property sold by John Lynch, as executor under an order of the surrogate, for the payment of the debts of his decedent. His bid was $5,325, and he paid down $532.50 for ten per cent thereof and twenty dollars auctioneer’s fee, besides $105, which he had paid for a search against the property. The examination of the title disclosed some irregularities in the proceeding which led up to the surrogate’s order of sale, and also an order of the bureau of inspection of buildings of the fire department in the city of Hew York requiring the owners of the buildings on the premises to remove them.

On the discovery of these difficulties Wolfe presented his petition to the surrogate disclosing them all, and asked to be relieved from his purchase and have the money refunded which he had paid out. The surrogate refused to entertain the proceedings and denied the application on the ground that he possessed no power or jurisdiction to grant any relief. The question for us, therefore, relates to the power of the surrogate to entertain the proceedings and grant the desired relief.

The application is for an order directing the executor, over whom the surrogate has full control, to repay money he has received in virtue of his office while acting in obedience to an order of the surrogate. In this examination it matters not whether the application is meritorious or otherwise, or whether the facts set out in the petition are true or untrue; that must be determined by the surrogate, provided he entertains the application.

Surrogates have power to direct the disposition of real property and interests in real property of decedents for the payment of their debts and funeral expenses, and the disposition of the proceeds thereof (Code of Civil Procedure, sec. 2472, sub. 5). They may also exercise such incidental powers as are necessary to carry into effect the powers conferred expressly (Code, sec. 2481, sub. 11). These provisions clothe those officers with powers to make to all necessary orders to carry into effect their decrees of sale, and at least to compel an executor to execute a deed in consummation of his sale or to pay hack to a purchaser his deposit paid at the sale. This seems to be sufficiently clear under the provisions of the Code of Civil Procedure, even if it was not so before, and the view is sustained by the court of appeals (In the Matter of Dolan, 88 N. Y., 309).

The order of the surrogate should be reversed and the proceedings remitted to his court, with directions to entertain the application and administer the proper relief. Costs to be paid out of the estate.  