
    In the Matter of the Estate of Mary Killan, Late of Rochester, N. Y., Deceased. Martin Killan, Appellant; Miles T. O’Reilly, as Administrator, etc., of Mary Killan, Deceased, Respondent.
    
      Surrogate’s decree settling an intestates estate — a brother of the intestate, not notified of the proceeding, is not entitled to a new accounting but may home the decree opened — costs.
    
    Where the estate of an- intestate has been divided among her cousins, in pursuance.of a decree made upon the judicial settlement of the accounts of the '-'administrator adjudging them to be the sole heirs at law and next of kin of the intestate, 'á. 'brother of- the intestate, who was hot cited to appear on the .accounting, is not entitled to maintain a proceeding to require the administra tor to aqcount de novo, hut his remedy is to -make a motion to have the -original . accounting and decree reopened.
    If he fnistakes his remedy and- institutes a proceeding to compel the administrator to account ele novo, the surrogate may properly impose costs upon him. ' personally:
    Appeal by. the petitioner, Martin Búllan, from a decree and order of the Surrogate’s Court of the county óf Monroe, entered in said Surrogate’s Court on the Util day of April, 1901, denying his motion for the issuance of a commission to examine witnesses and dismissing a proceeding to compel á judicial settlernent of the accounts of Miles T. O’Reilly, as administrator, etc., of Mary Búllandeceased.
    
      Myron D. Short and George D. Peck, for the appellant.
    
      James M. E. O'Grady, for the respondent.
   Williams, J. :

The decree and order appealed from should he affirmed, with costs.

The death of the intestate occurred August 24, 1898. O’Reilly, a creditor of the intestate, was appointed administrator of the estate October 21, 1898.The estate consisted of personal property of the value of $1,514.22. A citation, for a final settlement on petition of the administrator was issued returnable December 30,1899. It was directed to the next of kin, heirs at law, creditors and persons interested in the estate, and was served by publication by order of the surrogate upon Patrick Killan, one of the next of kin. On the return day of the citation five persons claiming to be cousins of the intestate appeared personally and by counsel, and claimed the estate. Their names were,-Martin Callon, John Gallon, Margaret Dunn, Michael 0. Gallon and Mary Ford.

The administrator declined to recognize these persons as heirs or next of kin. Thereupon issue was joined on the question of relationship, and on December 30,1899, these persons appeared and were examined in Surrogate’s Court, and were decreed to be cousins of the intestate, and the only heirs and next of kin living and entitled to share in the estate, and February Y, 1900, a decree was made in the Surrogate’s Court directing the administrator to distribute and pay to these persons the balance of the estate after the payment of debts and funeral expenses. And thereafter the administrator made payments accordingly, and filed his receipts in the Surrogate’s Court.

Thereafter, and on January 9,1901, the petitioner in this proceeding, claiming to be a brother of the intestate, and to live in Ireland, filed his petition, claiming that no accounting as to him had been made, and asked that citation be issued to the administrator to so account.

The citation was issued returnable January 23, 1901. On the return day the administrator answered, setting up the facts herein-before stated as to the former accounting, and that he had been discharged as administrator upon such accounting.' .

All these matters appeared to be true from proceedings and records in the office of the Surrogate’s Court, and were undisputed. And the court, upon motion of the administrator, refused to issue a commission to examine witnesses, and dismissed the proceeding for a new accounting de novo, holding that the court, by the filing of the petition for the original accounting, acquired jurisdiction of the subject-matter, and that the petitioner’s remedy was by motion to reopen the original accounting and decree made therein, upon notice to the parties who appeared thereon.

The surrogate was correct in the determination made by him. The court, acquired no jurisdiction, of the person of the present petitioner in the proceeding for the original accounting, and if the petitioner is really a brother of the intestate the original accounting and decree made thereon was not binding, upon him, and he is entitled to have such accounting and decree reopened, and to have his day in court; but the court acquired jurisdiction of the subject-matter of the accounting from the time of the filing of the original petition; that proceeding is still in court and this petitioner’s remedy must be had in that proceeding.

The surrogate had power to impose costs upon the petitioner personally, on the ground that he mistook his remedy, and made the administrator costs unnecessarily, and should, therefore, be required to pay the same.

The decree and order appealed from should be affirmed, with costs.

All concurred, except Rumsey, J., not sitting.

Decree and order affirmed, with costs.  