In re Westberg's Estate

• Decision Date: 09 December 1938
• Citation: 279 N.Y. 316,18 N.E.2d 291
• Parties: In re WESTBERG'S ESTATE.
• Court: New York Court of Appeals Court of Appeals

279 N.Y. 316

18 N.E.2d 291

In re WESTBERG'S ESTATE.

Court of Appeals of New York.

Dec. 9, 1938.

Proceeding in the matter of the petition of Selma Victoria Westberg to open and vacate the decree of probate and for the revocation of letters testamentary in the estate of Hilda Westberg, also known as Hilda Elliad Florinda Westberg, deceased, opposed by Clara L. Gruntal. From an order of the Appellate Division resettling an order, 254 App.Div. 320, 5 N.Y.S.2d 31, reversing a decree of the Surrogate's Court, 2 N.Y.S.2d 483, 165 Misc. 728, vacating the decree of probate and allowing the petitioner or any party interested to file objections, the petitioner appeals. On motion to dismiss the appeal.

Appeal dismissed. Appeal from Supreme Court, Appellate Division, First Department.

Alfred A. Cook and Emil Goldmark, both of New York City, for the motion.

J. Alfred Anderson, of New York City, opposed.

PER CURIAM.

The appellant may appeal to this court ‘as of right from a judgment or order entered upon the decision of an appellate division of the supreme court which finally determines an action or special proceeding * * * where the judgment or order is one of reversal.’ Civil Practice Act, § 588, subd. 1. The appeal must be taken ‘within sixty days after service upon the attorney for the appellant of a copy of the judgment or order appealed from and a written notice of the entry thereof.’ Civil Practice Act, § 592. In this case the Appellate Division, on June 24, 1938, made an order resettling an order made on June 10th, reversing a decree of the Surrogate's Court of New York county which vacated a decree of probate by the same court. ‘The order of the appellate division made upon an appeal must be entered in the office of the clerk of the appellate division.’ Civil Practice Act, § 621. On June 25th a copy of the order of the Appellate Division, with notice of entry, was served upon the attorneys for the appellants. Until September 2d, more than sixty days thereafter, no notice of appeal was served.

A certified copy of the order of the Appellate Division, entered in the office of the Clerk of the Appellate Division, was transmitted to the Clerk of the Surrogate's Court of New York county and, by direction of the Surrogate, an order was made and entered there, on July 5, 1938, which provided that ‘the order of the Appellate Division, made and entered on June 24th, 1938, be and the same hereby is made the order of this court.’ (Italics are ours.) A copy of the order entered in the Surrogate's Court, with notice of entry, was served on the attorneys on July 7th. Within sixty days thereafter, and on September 2d, the appellant served a notice of appeal ‘from the order, judgment and decree of the Appellate Division of the Supreme Court, First Judicial Department, dated July 5th, 1938, and filed and entered in the office of the clerk of the Surrogate's Court, County of New York, on the 7th day of July, 1938, by direction and order of the Appellate Division of the Supreme Court, First Judicial Department, * * * reversing, in all things, the decree of the Surrogate's Court, County of New York * * * vacating the decree of probate of the will of Hilda Westberg.’ The respondent has moved to dismiss the appeal on the ground that the notice was served more than sixty days after notice of entry of the order of the Appellate Division in the office of the Clerk of the Appellate Division.

The statute requires that after an order of the Appellate Division, made upon an appeal, has been entered in the office of the Appellate Division, a certified copy of the order, together with the original case or papers upon which the appeal has been heard, must be transmitted to the Clerk of the court where the judgment or order appealed from was entered if the appeal was from a judgment or order of the Supreme Court, or to the Clerk of the Surrogate's Court if the appeal was from a judgment or order of that court. ‘The judgment, if any, rendered or directed, pursuant to any such order, shall be entered by the clerk to whom the order and the case and papers were transmitted.’ Civil Practice Act, § 621. An order of the Appellate Division which directs judgment is simply an authority for the entry of judgment by the clerk to whom the order has been transmitted. Deight v. Gibb, 208 N.Y. 153, 101 N.E. 851. There is no provision for the entry of a second order when no judgment is rendered or directed pursuant to the order of the Appellate Division.

These provisions of section 621 create an unfortunate distinction confusing to members of the bar. Since the judgment entered by the Clerk to whom the order of the Appellate Division is transmitted is the only ‘judgment * * * entered upon the decision of an appellate division,’ the appeal from a ‘judgment’ which is authorized by section 588 of the Civil Practice Act, must be taken from the judgment so entered and the time in which such an appeal may be taken runs from the date of notice of entry of that judgment. On the other hand, since the same section of the Civil Practice Act provides for the entry of the order of the Appellate Division in the office of the Clerk of the Appellate Division and does not provide for the entry of any other order upon the decision of the Appellate Division, when no judgment is rendered or directed, an appeal from an ‘ order entered upon the decision of an appellate division’ must be from the order so entered in the office of...