Opinion
December 3, 1909.
Chester A. Jayne, for the appellant.
Eugene D. Boyer, for the respondent Mills.
Theodore M. Hill, special guardian, for the respondents Douglas Sloane and Anna M. Sloane.
The account of the administratrix and the objections thereto raised an issue of fact. ( Matter of Woodward, 69 App. Div. 286. ) That question was tried on affidavits instead of oral testimony, a practice to be discouraged, particularly where, as here, nice questions both of fact and of law are involved. It was important to show definitely the agreement, pursuant to which the bond and mortgage of February 11, 1892, were given, the agreement pursuant to which the deed of August 10, 1892, was given, and the intention of the parties to both transactions. Even though affidavits in place of oral testimony were received, the trial was the trial of an issue of fact, and a decision as required by section 2545 of the Code of Civil Procedure was necessary to support the decree. Although both sides request a decision on the merits, we have no alternative but to reverse the decree and remit the proceedings to the Surrogate's Court.
WOODWARD, JENKS, BURR, RICH and MILLER, JJ., concurred.
Decree of the Surrogate's Court of Westchester county reversed, with costs to the appellant, and proceedings remitted to the Surrogate's Court for further hearing and decision as required by section 2545 of the Code of Civil Procedure.