§ 2481. Incidental powers of the surrogate. — A surrogate, in court or out of court, as the case requires, has power:

1. To issue citations to parties, in any matter within the jurisdiction of his court; and, in a case prescribed by law, to compel the attendance of a party.

2. To adjourn, from time to time, a hearing or other proceeding in his court; and where all persons who are necessary parties have not been cited or notified, and citation or potice has not been waived by appearance or otherwise, it is his duty, before proceeding further, so to adjourn the same, and to issue a supplemental citation, or require the petitioner to give an additional notice, as may be necessary.

3. To issue, under the seal of the court, a subpoena, requiring the attendance of a witness, residing or being in any part of the State; or a subpoena duces tecum, requiring such attendance, and the production of a book or paper material to an inquiry pending in the court.

4. To enjoin, by order, an executor, administrator, testamentary trustee or guardian, to whom a citation or other process has been duly issued from his court, from acting as such, until the further order of the court.

5. To require, by order, an executor, administrator, testamentary trustee, or guardian, subject to the jurisdiction of his court, to perform any duty imposed upon him, by statute, or by the surrogate's court, under authority of a statute.

6. To open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers conferred by this subdivision, must be exercised only in a like case and in the same manner, as a court of record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the general term of the supreme court has the same power as the surrogate; and his determination must be reviewed, as if an original application was made to that term.

7. To punish any person for a contempt of his court, civil or criminal, in any case where it is expressly pre

scribed by law that a court of record may punish a person for a similar contempt, in like manner.

8. Subject to the provisions of law, relating to the disqualification of a judge in certain cases, to complete any unfinished business, pending before his predecessor in the office, including proofs, accountings, and examinations.

9. To complete, and certify and sign in his own name, adding to his signature the date of so doing, all records of papers, left uncompleted or unsigned by any of his predecessors.

10. To exemplify and certify transcripts of all records of his court, or other papers remaining therein.

11. With respect to any matter not expressly provided for in the foregoing subdivisions of this section, to proceed, in all matters subject to the cognizance of his court, according to the course and practice of a court, having, by the common law, jurisdiction of such matters, except as otherwise prescribed by statute; and to exercise such incidental powers, as are necessary to carry into effect the powers expressly conferred.

2 R. S. 221, 6 and 11 (2 Eim. 230, 231); L. 1837, ch. 460, 9 (4 Edm. 458); 1., ¿ 61 (4 Edm. 497); L. 1870, ch. 74, 82 (7 Edm. 591); L. 1871, ch. 424, 2, and L. 1874, ch. 9 (9 Edm. 849). Perry v. Mitchell, 4 Den. 537: Campbell v. Thatcher, 54 Barb. 382; Dobke v. McClaran, 41 id. 491; Vreedenburgh . Calf, 9 Paige, 128; Pew v. Hastings, 1 Barb. Ch. 452; Harrison e. McMahon, 1 Bradf. 283; reversed on other grounds, 10 Barb. 659; 6 N. Y. 413; Sipperly v. Baucus, 24 id. 46; Strong e. Strong, 3 Redf. 477; Boughton v. Flint, 74 N. Y. 476; Matter of Watson, 69 id. 536; Reeve v. Crosby, 3 Redf. 74: McNaughton r. Chave, 5 Abb. N. C. 225; Bricks' Estate, 15 Abb. Pr. 32; Richardson r. Root, 19 Hun, 473; Carman v. Cowles, 2 Redf. 414; Reed v. Reed, 52 N. Y. 651; Matter of Marsh, 9 Week. Dig. 498; Baily v. Hilton, 14 Hun, 3; Bailey v. Stewart, 2 Redf. 212; Wright's Accounting, 16 Abb. N. S. 429: Jansen v. Wemple, 3 Redf, 22: Wells v. Wallis, 2 id. 58; Hart v. Duffy, id. 151; Pew v. Hastings, I Barb. Ch. 452; Patullo's Estate, 1 Tuck. 99; Munro's Estate, 15 Abb. 363; Savage . Olmstead, 2 Redf. 478; Furniss v. Furniss, id. 497; Brown's Accounting, 16 Abb. Pr. N. S. 457.

§ 2482. This chapter applicable to previous wills, etc.-Each provision of this chapter, relating to the jurisdiction of the surrogate's court, to take the proof of a will, and to grant letters testamentary or letters of administration, or regulating the mode of proceeding in any matter connected with the estate of a decedent, applies, unless otherwise expressly declared therein, whether the will was made, or the decedent died, before or after this chapter takes effect.

2 R. S. 68, 686 (2 Edm. 69), amended.

ARTICLE SECOND.

GENERAL DUTIES AND DISABILITIES OF THE SURROGATE OR TEMPORARY SURROGATE.

BEC. 2483. Surrogate and acting surrogate; their official designations. 2484. Vacancy or disability; who to act as surrogate

2485. Id.; if surrogate disqualified.

2486. Id.; in New-York and Kings counties.

2487. Proof of authority.

2488. Id.; when and how made.

2489. How authority superseded.

2490. Proceedings in New-York and Kings counties regulated.

2491. Id.; transfer of proceedings to surrogate's court.

2492. Temporary surrogate; when board of supervisors may ap

point.

2493. Id.; compensation.

2494. Id. acts, etc., where and how recorded.

2495. Surrogate, when not to be counsel, etc.

2496. Surrogate, when disqualified.

2497. Disqualification; when objection must be taken.

2498, 2499. Books to be kept by surrogate.

2500. Papers and books to be preserved.

2501. Surrogate to report fees.

2502. Id.; in New-York county.

2503. What papers to be transmitted to secretary of State; expenses thereof.

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2483. Surrogate and acting surrogate; their official designations. · Where the county judge is also surrogate, he may be designated, in any paper or proceeding relating to the office of surrogate, as the surrogate of the county, without any addition referring to his office as county judge. A local officer elected, as prescribed in the constitution, to discharge the duties of surrogate, or of county judge and surrogate, is designated in this act, and, when acting as surrogate, may be designated as the "special surrogate" of his county. Where an officer, other than the surrogate, acts as surrogate in a case prescribed by law, he must be designated by his official title, with the addition of the words, "and acting surrogate."

New in form; L. 1853, ch. 648 (4 Edm. 599); L. 1871, ch. 859, § 7 (9 Edm. 214). Hathaway's Will, 9 Hun, 79; s. c., 71 N. Y. 238.

2484. Vacancy or disability; who to act as surrogate.- Where in any county, except New-York or Kings, the office of surrogate is vacant; or the surrogate is disabled, by reason of sickness, absence, or lunacy; and special provision is not made by law, for the discharge of the duties of his office in that contingency;

the duties of his office must be discharged, until the vacancy is filled, or the disability ceases, as follows:

1. By the special surrogate.

2. If there is no special surrogate, or he is in like manner disabled, or is precluded or disqualified, by the special county judge.

3. If there is no special county judge, or he is in like manner disabled, or is precluded or disqualified, by the county judge.

4. If there is no county judge, or he is in like manner disabled, or is precluded or disqualified, by the district-attorney.

But before an officer is entitled to act, as prescribed in this section, proof of his authority to act, as prescribed in section 2487 of this act, must be made.

Sections 2484-2494, inclusive, are substituted for 2 R. S. 79, 49–54 (2 Edm. 80); L. 1847, ch. 470, 232 (4 Edm. 586); L. 1871, ch. 859, 38 (9 Edm. 214) L. 1877, ch. 285; L. 1879, ch. 151. Holmes v. Smith, 3 Iun, 413; s. c., 6 S. C. 57.

§ 2485. Id.; if surrogate disqualified. Where the surrogate of any county, except New-York or Kings, is precluded or disqualified from acting with respect to any particular matter, his jurisdiction and powers with respect to that matter vest in the several officers designated in the last section, in the order therein provided for. If there is no such officer qualified to act therein, the surrogate may file in his office a certificate stating that fact; specifying the reason why he is disqualified or precluded, and designating the surrogate of an adjoining county, other than New-York or Kings, to act in his place in the particular matter. Thereupon the surrogate so designated has, with respect to that matter, all the jurisdiction and powers of the surrogate making the designation, and may exercise the same in either county.

See note to 2484, ante; L. 1877, ch. 285, amended; L. 1879, ch. 311. Darling v. Pierce, 15 Hun, 542.

2486. Id.; in New-York and Kings counties.-In the county of New-York, the court of common pleas for that city and county, and, in the county of Kings, the supreme court, at a special term thereof held in the city of Brooklyn, must, upon the presentation of proof of its authority, as prescribed in the next section, exercise

all the powers and jurisdiction of the surrogate's court, as follows:

1. Where the surrogate is precluded or disqualified from acting, with respect to a particular matter, it must exercise all the powers and jurisdiction of that court with respect to that matter.

2. Where the office of surrogate of the county is vacant, or the surrogate is disabled by reason of sickness, absence, or lunacy, it must exercise all the powers and jurisdiction of that court, until the vacancy is filled, or the disability ceases, as the case may be.

New; see note to 2484, ante. Landers v. Staten Island R. R. Co., 53 N. Y. 450.

2487. Proof of authority.-The authority of another officer, or, in the county of New-York, of the court of common pleas, or, in the county of Kings, of the supreme court, to act as prescribed in the last three sections, must be proved, in one of the following modes:

1 Where the surrogate is disqualified, or precluded from acting in a particular matter, that fact may be proved by the surrogate's certificate thereof; or, except as otherwise prescribed in section 2485, by affidavit or oral testimony.

2. The fact that the surrogate is so disqualified or precluded, or that he is disabled, or that the office is vacant, and also the authority of the officer, or of the court, as the case may be, to act in his place, may be proved, and are deemed conclusively established, by an order of the general term of the supreme court, held within the department embracing the county. After such an order is made, the surrogate shall not make the certificate specified in section 2485 of this act, and if such a certificate has been theretofore filed, the powers and jurisdiction of the surrogate therein designated, as specified in that section, henceforth cease.

New in form, See note to 2484, ante.

2488. Id.; when and how made.-An order may be made, as prescribed in subdivision second of the last section, upon or without notice, as the general term thinks proper. It must recite the cause of the making thereof; it must designate the officer or court, empowered to discharge the duties of the office of surrogate; and, if it relates to a particular matter only, it must