
    In the Matter of the Application for the Removal of James Neale Plumb, as General Guardian.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 7, 1889.)
    
    Surrogate’s court—Reference—Objections to application not available ON MOTION TO APPOINT NEW REFEREE.
    Where the determination of a surrogate that a reference is necessary to take proof on an application has been affirmed on appeal, objections going to the merits of the application cannot be entertained on motion for the appointment of a new referee upon the death of the one formerly appointed. Such objection comes too late.
    Appeal from an order of the surrogate appointing a referee in the place of a referee deceased.
    
      Henry Thompson, for app’lt; David McClure, for resp’ts.
   Van Brunt, P. J.

This general term decided, upon an appeal from the order directing a reference and appointing the referee who has since died, that the surrogate had the power to make the order appealed from.

The referee named in that order having died, this motion was made to appoint some suitable person as referee in the place of the deceased referee.

Upon the hearing of this motion the counsel for the appellant attempted to raise objections to the sufficiency of the petition which upon the previous appeal this court held would have been fatal to the original application had they been made before answer was filed to the petition.

It seems to be clear that such objections cannot avail upon this motion.

The proceeding is before the surrogate. He had determined that a reference was necessary to take proof, and this determination has been affirmed upon appeal.

The referee originally named having died, the only question before the surrogate was the naming of another in his place. The determination to refer having been upheld, and being finally determined to be proper, no objection going to the merits of the application can be entertained.

As was stated upon the previous appeal, this objection comes too late.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Daniels and Barrett, JJ., concur.  