
    In the Matter of the Application for Letters of Administration with the Will Annexed of Henry A. Sheldon, Deceased.
    Third Department,
    January 18, 1907.
    Practice — undertaking on appeal from Surrogate’s Court — no exception to sureties after approval by surrogate — power of Appellate Division to perfect appeal.
    An undertaking given under sections 2577 and 2581 of the Code of Civil Procedure on an appeal to the Appellate Division from a decree or order of the surrogate is not governed by section 1385 of the Code of Civil Procedure providing for the justification sf sureties. Such latter section relates only to appeals to the Court of Appeals and is not applicable to the Surrogate’s Court. Hence, when such undertaking has been filed with the surrogate and has been allowed and approved by him, an exception to the sureties is not well taken, and a motion to perfect an app.eal under section 1303 of the Code of Civil Procedure will be dismissed.
    ■The remedy, if sureties are insufficient of become insolvent, is to apply for an order requiring a new bond or undertaking or additional securities as the case may require.
    It is within the discretion of the surrogate whether he will determine the sufficiency of sureties from their affidavits of justification or will require the sureties-to attend and be examined.before approving’ the undertaking. He may establish rules to regulate the justification of sureties in his-own court.
    The Appellate Division has power to permit an appellant from the Surrogate’s Court to file a new undertaking or do any other act necessary to perfect an appeal
    Motion to perfect an appeal.
    ’ Taylor L. Arms, for the appellant. ,
    
      Isaac Weill, for the respondent.
   Sewell, J.:

This is an application to perfect an appeal under section 1303 of the Code of Civil Procedure. The decree or order from which the appeal was taken was entered in Surrogate’s Court October 18, 1906. The notice of appeal was duly served, and an undertaking approved by the surrogate, with the .approval indorsed thereon, Was tiled in the surrogate’s office. October 22, 1906. The undertaking was executed in conformity with the provisions of sections 2577 and 2581 of the Code, which prescribe the form of an undertaking", to perfect an appeal from Surrogates’ Courts, and accompanying it was an affidavit of each surety to the effect that he was a resident of and freeholder within the State, and worth twice the sum specified in the undertaking, over and above all his debts and liabilities and exclusive of property exempt by law from levy and sale under an execution. On November 1, 1906, the respondent’s attorney caused a notice of exception to the sureties to be served on the appellant’s attorney, who thereupon made a motion to set aside the exception. The motion was denied by the surrogate on the ninth day of -November, and as the appellant could not then cause the sureties to justify before the surrogate within ten days after the notice of exception, and the respondent claimed the undertaking was not effectual for any purpose, application is made to perfect the appeal by filing another «undertaking. ’ > ■

There is no' force in the contention of the respondent, that this court has not the power to permit an appellant to file a new undertaking, or to do any other act necessary to perfect an appeal from Surrogate’s Court. That power is expressly given by section 1303 of the Code of Civil Procedure to the court, “ in or to which the appeal is taken,” and that section, is made applicable to appeals- from Surrogates’ Courts by section 2575 of the Code.

We can find, however, no authority for the assumption of counsel, that the filing of the undertaking already given, and the service of the notice of appeal, did not perfect the appeal herein.

Section 1335 of the Code, which provides for the justification of the sureties in an undertaking given to perfect an appeal within a certain time after notice of filing and exception thereto, relates to appeals to 'the Court of Appeals and has not been made applicable to appeals from Surrogates’ Courts.

There is no provision in chapter 18 of the Code, which provides a complete system of appeals from orders and decrees made in Surrogates’ Courts, altogether distinct from the provisions in reference to appeals from other courts, nor is there included within any section of the Code, made applicable to proceedings in Surrogates^ Courts, a provision which requires the' sureties in an undertaking or bond, given to perfect an appeal or for any other purpose, to attend before the surrogate within a certain time and be examined as to their sufficiency.

From the absence of such a provision, it would seem that the Legislature intended to dispense with that proceeding in respect to all bonds and undertakings required to be given in Surrogates' Courts, and that the sufficiency of -the sureties therein should be determined from the affidavits of justification which must accompany such instruments and be subjoined thereto". (Code Civ. Proc. § 812.)

That such was the intention of the Legislature is also apparent from the fact that express provision is made in that chapter for an ex parte approval of all bonds and undertakings prescribed therein, and the approval is made conclusive proof of the sufficiency of the sureties, in that the only remedy reserved to a respondent or other person interested, if the sureties are insufficient or become insolvent, is to apply for an order requiring a new bond or undertaking or new or additional sureties as the case may require. (Code Civ. Proc. §§ 1308, 2575, 2597.)

There is no intimation of a justification or an allowance of sureties after the undertaking has been approved and' filed in the surrogate’s office. On the contrary, there is a plain and explicit declaration in section 2581 of the Code that “ the filing of a proper undertaking and service of the notice of appeal, perfect the appeal.” That was the substance and effect of the provisions of the Revised Statutes relating to appeal from Surrogates’ Courts, from which this section was taken. (2 R. S. 66, § 56 ; Id. 610, § 108.)

It is a matter in the discretion of the .surrogate ' whether he will determine the sufficiency of the sureties from the affidavits of justification,. or whether he' will require the sureties, to attend before him and be examined touching their sufficiency, before approving of the undertaking. He may establish á rule to regulate the justification of sureties in his own court, and make a compliance therewith a condition of his approval, as the surrogates of the county of Hew York have done (Surrogate’s Rules, 16, II); but after he has approved of an undertaking and indorsed his approval thereon,, it is all the. Code requires. There is, then, ,a strict compliance with its provisions, and the undertaking is effectual for all the purposes for which it is required.

Obviously, therefore, the appeal herein was .perfected when the. appellant served her notice of appeal and filed the undertaking in the surrogate’s office, and for that reason the application is denied, without costs. ,

All concurred.

Motion denied, without costs.  