
    In the Matter of the Estate of Letitia E. Gowdey, Deceased. Sanford S. Gowdey, Appellant; Letitia E. Redfield, as Administratrix with the Will Annexed of Letitia E. Gowdey, Deceased, Respondent.
    
      An order of a Surrogate’s Court must specify the papers upon which it was made— otherwise an appeal therefrom will he dismissed — what certificate in respect to the papers is insufficient to prevent it.
    
    Under rule 41 of the General Rules of Practice, if an order of the Surrogate’s Court does not specify the papers upon which the order was made, an appeal therefrom will be dismissed.
    If the papers used in’ the court below are not specified in the order, a certificate contained in the appeal book, in which the clerk of the Surrogate’s Court certifies as follows; “ I have compared the foregoing papers on appeal from order, consisting of the notice of appeal, order appealed from and papers which were used before the surrogate on the motion on which said order was made, with. the originals on file and remaining in said office, and * * * that the same . are true and correct transcripts therefrom and of the whole of said originals," will not prevent the dismissal' of 'the appeal.
    Motion ■ by the respondent, Letitia E. Redfield, as administratrix with the will annexed of Letitia E. Gowdey, deceased, to dismiss an appeal from an order of the Surrogate’s Court'of Sullivan county, entered in said Surrogate’s Court on the 15th day of June, 1904, denying the appellant’s motion to open a decree made by said Surrogate’s Court and for a reconsideration of the same.
    This motion is made upon the ground that the deponent has not duly settled liis ease'and exceptions, and has not had. the same printed z and signed in accordance with the provisions of the. Code of Civil Procedure and the General Rules of Practice.
    
      John D. Lyons, for the motion.
    
      Sanford S. Gowdey, opposed.
   Per Curiam :

The appellant has printed and served an appeal book containing a copy of the notice of appeal, the order appealed from and certain papers, together with a certificate of the clerk of the Surrogate’s Court of Sullivan county, in which certificate he' says: “ I have compared the foregoing papers on appeal from order, consisting of the notice of appeal, Order appealed from and papers which were used before the surrogate on 'the motion on which ■ said order was made, with the originals on file and remaining in said office, and" excepting the notice 'of entry of said ordér and the omission of the title in the said several papers following the first herein, that the same are true and correct transcripts therefrom and of the whole of said Originals.”

The order of this court, dated December 2, 1904, and granted on default, directing, among other things, that the appeal be dismissed unless the appellant duly settle his case and exceptions,” was to that extent improperly granted, as a case and exceptions is not required or proper in' this case, and the order to that extent should not be enforced.

. The papers on an appeal of this kind, consist of printed copies of the papers which were used in the court below and cure specified in the order certified by the clerk or stipulated by the parties to be true copies of the original and of the whole thereof. (General Rules of Practice, rule 41.)

The order appealed from does not specify the papers used in the court below. Said rule requires that the papers used in the court below shall be so specified in the order. ‘ Where they are so specified in the order such papers, with the order appealed from and the notice of appeal, must be printed, filed and served as provided by said rule. If the papers used in the court below are specified in the order it results in a determination by the court making the order appealed from as to what papers shall be printed if an appeal is taken from the order, and the certificate of the clerk is then simply for the purpose of establishing the fact that the papers so printed are true, copies of the originals required by the rule to be printed.

It will- be necessary for the appellant to have the order appealed from amended so as to specify the papers which were used in the court below, and print and serve the papers so specified with the order and notice of appeal, or the appeal will on proper motion be dismissed. ( Whipple v. Ripson, 29 App. Div. 70.)

The motion now before us is denied.

All concurred.

Motion denied.  