
    In the Matter of the Judicial Settlement of the Estate of Augustus H. Peck, Deceased. Albert F. Peck and Others, Appellants; Grace Peck, as Administratrix, etc., of Augustus H. Peck, Deceased, and American Surety Company, Respondents.
    Second Department,
    March 5, 1909.
    Court — surrogate — opening decree — Code Civil Procedure, section 2481, subdivision 6, construed—-correction of judicial error—judgment—conclusiveness of surrogate’s decree.
    A surrogate cannot open, modify, vacate or set aside his decree, as authorized by subdivision 6 of section 3481 of the Code of Civil Procedure, unless the moving papers show that there has been fraud, or evidence newly discovered, or that a clerical error, as distinguished from a judicial error, has been committed, or that other sufficient cause exists".
    The surrogate cannot open his decree for a judicial, as distinguished from a clerical error; the correction of the former must be had by appeal.
    The decree of a surrogate on a final accounting is conclusive only as to matters before the court, and where the claim of an administratrix to personal ownership of bonds left by the decedent was not before the court a' decree settling her accounts is not conclusive as to her title. Hence, next of kin who have brought action to recover the bonds are not aggrieved by the surrogate’s decree so as to be entitled to appeal therefrom. Their rights should- be left for determination in the action.
    .Appeal by Albert F. Peck and others from an order of the Sur-rogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 19th day of October, 1908, denying the appellants’ motion to open, vacate or modify a decree theretofore entered herein judicially settling the accounts of Grace Peek, as administratrix.
    
      Louis Malthaner, for the appellants.
    
      C. E. Cuddeback, for the respondents.
   Woodward, J.:

Augustus H. Peck died a resident of Orange county in March, 1907. He left no will, and was survived by his widow, Grace Peck, and three children, the latter constituting the appellants now before this court. Grace’ Peek was duly appointed as administratrix of the estate-.. In a safe deposit box were found, among; the assets of the estate, five bonds of the Japanese government and two other bonds, all unregistered,- aggregating $í,000. These bonds were contained in two envelopes, on which were indorsed, in the intestate’s handwriting, declarations that the bonds were the property of his wife, and were not to be accounted for by her in any way. The appellants have brought an action in the- Supreme' Court to determine the owners!rip of -these bonds, and the present controversy arises ever the provisions in the decree of the surrogate of Orange' county judicially settling the accounts of Grace Peck as administratrix. The appellants were represented by counsel in the accounting, and the decree was entered by consent. It contains this- prevision': “ It is- further.ordered, adjudged and decreed that ripoti payment to said distributees [the Widow and the three -children of decedent] of the amounts thus set opposite to their respective' naipes, that said administratrix- be and she hereby is, together with the surety upon her official' bond, discharged and relieved from all further or other liability or responsibility in connection with said estate and to the distributees thereof.” The appellants moved before the surrogate for an- order opening, vacating or modifying the final accounting decree,', tile object being to get the above clause modified, It' being claimed that it was embarrassing the litigation pending in the Supreme Court above referred to. This motion was denied, the learned surrogate in an opinion holding that£< while this clause is broader and more- sweeping in its terms than should he either permitted or used in decrees discharging executors or administrators, still as a decree has no binding force on any party interested,, except ás to the matters or "items embraced in the account up to and including the date of; its rendition, I aul- unable to see that the applicants have been deprived of any other or further rights which they .have or had in said estate which cannot he recovered by an action at law or other proper proceeding;” The learned court cites the provision of subdivision 6 of section 2481 of the Code of Civil- Procedure authorizing the surrogate to exercise the Incidental power to ,££ open, vacate, modify,' or spt aside,, or to enter, as -of a, former timé, á decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error^ or other sufficient cause,” and then says: “ The affidavits presented by applicants fail in my judgment to show fraud, clerical error or other sufficient reason why said decree should be vacated or opened.”

In this conclusion, which is practically holding that the surrogate is without jurisdiction to open the decree, we are of the opinion that the learned surrogate is right. The subdivision of the Code of Civil Procedure above cited provides further that the “powers, conferred by this subdivision, must be exercised only in a like case and in the same manner, as a court of record and of general jurisdiction exercises the same powers,” and this clearly requires that the notice of motion or the moving papers should point out the grounds of the motion, whether for fraud, newly discovered evidence, clerical error,, or other sufficient cause' (Code Civ. Proc. § 1289), and no such suggestion is to be found in the papers now before us. The notice of motion is for an order in the above-entitled proceeding to set aside the said decree, to authorize and permit, the' said Albert F. Peck, Mary A. Peck and Lizzie Peck Courvoisier to interpose objections to the settlement of the said administratrix’s account or that the portion of the decree referred to in the affidavit of Louis Malthaner hereto annexed, be stricken out, and for such other or further relief,” etc. The provision of the decree referred to is the one quoted above, and the affidavits do not suggest that the administratrix has been guilty of any fraud in the procuring of the decree, or that there has been any newly discovered evidence, clerical error or other sufficient cause, as that' term is judicially understood. In Matter of Henderson (157 N. Y. 423, 428) the court, in discussing this provision of the Code of Civil Procedure, say: “ The statute, in speaking of a like case, means that the party making the motion must show the existence of the error or mistake in the same way as if the record Was in the other court, and, in providing for the exercise of the power in the same manner, all that is meant is that the surrogate shall proceed-in the same way to hear the application. . Proof must be . made, notice given and a judicial hearing of the parties had,” etc. In other words, the moving papers must show that there has been fraud, or that evidence has been newly discovered, or that a clerical error, as distinguished from a judicial error, has been committed, or that other sufficient cause exists. As the Court of Appeals has-said in Matter of Tilden (98 N. Y. 434, 442): “ It would, therefore, seem that the power conferred upon the surrogate was limited to cases of ‘fraud, newly-discovered evidence, clerical errors or other sufficient cause/ and would preclude him from exercising the jurisdiction conferred by that section for other causes. .Under settled rules of interpretation the words ‘ or other sufficient cause’ must be interpreted to mean causes of like -.nature with those specifically named. The maxim ‘ noseitur a sociis ’ applies, and limits the signification of the general phrase;” Clearly, the deliberate language made use of' in a judicial decree, made and entered with all the formalities of law, cannot be said to constitute a clerical error; it is, if anything, a judicial error, and the correction of judicial, error is not .intrusted by the statute to the surrogate, but to the appellate courts. Any party aggrieved may appeal (§ 2568) within thirty days after the service of a notice of the decree (§ 2572), and we are of the opinion that the provisions of the Code of Civil Procedure above cited, making provision for opening a.decree for fraud, newly discovered evidence, clerical error or other sufficient cause, necessarily precludes tiie idea that-a judicial error may be corrected by a motion, made before the surrogate. If it may,- then a decree which, by the terms of section 2742 of the Code of .Civil Procedure, becomes conclusive evidence against all the parties upon certain facts may, at any time after the time for appeal has expired, be subject to be opened or set aside, for it was held in Matter of Henderson (supra) that there was no limit of time imposed upon the exercise of the powers granted under the provisions of section 2481 of the Code of Civil Procedure. No such intention may be imputed to the Legislature, and the dignified and'orderly administration of justice requires that judicial errors shall be corrected, not at the caprice or whim of the court of original jurisdiction, but in the method clearly pointed out by law and sanctioned by agés of usage. (See Matter of Soule, 72 Hun, 594, 597, and authorities there cited.)

In the case now before us, it appears clearly that the appellants are not aggrieved within the meaning of the • provision for appealing, for section 2742 of the Code of Civil Procedure provides that a judicial settlement of the account of an executor or administrator, either by the decree of the Surrogate’s .Court, or upon an appeal therefrom, is conclusive evidence against all parties of the following facts, and no others,” and then follows an enumeration which simply, includes the matters which must be passed upon in relation to the matters covered by the accounting. The. books aré full of cases which recognize the fact that the decree is limited in its operations to the matters actually before the court, and we are of the opinion that, no matter what the particular language of this decree, it does not operate to deprive the appellants of any rights, for the reason that the bonds, or any question relating to them, was not before the surrogate for determination. The law controls the effect of the decree and the surrogate could not overrule, disregard or change a valid statute. (Altman v. Hofeller, 152 N. Y. 498, 502, 503.) The decree is conclusive only so far as it is made so by the statute (Frethey v. Durant, 24 App. Div. 58, 62), and any rights which the appellants have in the bonds which it is claimed the administratrix has not properly accounted for may be determined in the action now pending. But, were this not true, they have ho right to open this decree for a judicial error; their remedy was exclusively by an appeal from the decree.

The order appealed from should be affirmed, with costs.

Hirschberg, P. J., Jenks, High and Miller, JJ., concurred.

Order of the Surrogate’s Court of Orange county affirmed, with ten dollars costs and disbursements.  