Nowakowski's Estate, In re

• Decision Date: 14 March 1956
• Citation: 1 A.D.2d 250,149 N.Y.S.2d 489
• Parties: In re NOWAKOWSKI'S ESTATE. Application of Louis SZCZUKOWSKI and Mary Nowakowski, Executors, etc., of Alexandra Nowakowski, deceased, to obtain a determination as to the Validity and Effect of a Purported Election, etc. Felix Nowakowski, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 489

149 N.Y.S.2d 489

1 A.D.2d 250

In re NOWAKOWSKI'S ESTATE.

Application of Louis SZCZUKOWSKI and Mary Nowakowski,

Executors, etc., of Alexandra Nowakowski, deceased, to

obtain a determination as to the Validity and Effect of a

Purported Election, etc. Felix Nowakowski, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Argued Jan. 11, 1956.

Decided March 14, 1956.

John J. Nasca, Buffalo, for respondents, executors.

Falk, Twelvetrees, Johnston & Siemer, Buffalo (Edward D. Siemer, Buffalo, of counsel), for appellant.

Before McCURN, P. J., and VAUGHAN, KIMBALL, WHEELER and WILLIAMS, JJ.

KIMBALL, Justice.

We heretofore affirmed the decree of the Surrogate's Court upon the merits, Matter of Nowakowski's Estate, 284 App.Div. 655, 133 N.Y.S.2d 842, 844. At that time, a question arose as to whether the trial had was one before the surrogate or before a clerk in his office and whether the determination embodied in the decree was that of the surrogate. We stated that we were bound by the stipulated record. By way of dictum, our opinion pointed out that the trial of a contested proceeding in the Surrogate's Court could not be conducted by a clerk of the court. We said, in reference to Section 32 of the Surrogate's Court Act, which defines cretain powers of clerks and other officers of the Surrogate's Court: 'Among such powers we do not find any legislative authority to the clerk to hear, try and determine contested proceedings. * * * We know of no authority by which the surrogate may confer his judicial powers to hear, try and determine upon some appointed clerk in his office.' Subsequent to an order of this court to permit the correction of the record, 286 App.Div. 951, 142 N.Y.S.2d 825, we granted the appellant a reargument upon the corrected record, Szczukowski v. Nowakowski 286 App.Div. 989, 144 N.Y.S.2d 741 solely upon the jurisdictional question raised in reference to the trial, i.e., whether the trial which would include the determination was had before the surrogate or the clerk.

The corrected record now before us shows that the several witnesses were sworn and testified before the clerk; that the surrogate did not see or hear the witnesses; that the clerk ruled upon the objections and that the title of the matter was followed by 'Proceeding before Hon. John L. O'Day, Clerk of Surrogate's Court'. The corrected record, however, shows that the written decision of six pages was signed by 'Christy J. Buscaglia, Surrogate' and that said Surrogate presided at a court on the 28th day of January, 1953, when the decree was made and signed by said 'Christy J. Buscaglia, Surrogate.' We must give effect to the presumption of regularity of the proceedings in the Surrogate's Court. In the absence of proof to the contrary, it must be presumed that the surrogate, upon the testimony reported to him, approved the rulings of the clerk, satisfied himself as to the facts, made the decision and signed the decree. Pursuant to subdivision 10 of Section 32 of the Surrogate's Court Act, the surrogate had statutory authority to direct the clerk to take under oath and report the testimony in the proceeding. The clerk was without authority to pass upon the issues or make a determination. While the record does not contain any notation that the surrogate directed the clerk to take and report the testimony nor that the clerk reported the testimony to the surrogate, it is presumed that such was the case. There was, of course, no 'proceeding' before the clerk. The 'proceeding' was pending in the Surrogate's Court and the trial and determination thereof was solely within the jurisdiction of the surrogate. The clerk's authority was confined strictly to taking and reporting the testimony to the court. No issue involved could be passed upon by the clerk. We find no authority which holds that the taking of testimony in the manner prescribed in Section 32, subd. 10, is violative of any constitutional provision.

The appeal upon this reargument presents a question of fact. The question of law as to the authority...