exception is duly taken by the appellant, as prescribed in this section. But such a decree or order shall not be reversed, for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby.

New. See 1992-998, ante. Brick v. Brick, 66 N. Y. 144; Cushman v. U. S. L. Ins. Co., 70 id. 72; Dixon v. Rice, 16 Hun, 422; Copeland v. Van Alst, 9 Week. Dig. 407.

§ 2546. Surrogate may refer question of fact, or account. In a special proceeding, other than one instituted for probate or revocation of probate of a will, the surrogate may, in his discretion, appoint a referee to take and report to the surrogate the evidence upon the facts, or upon a specific question of fact; to examine an account rendered; to hear and determine all questions, arising upon the settlement of such an account, which the surrogate has power to determine; and to make a report thereon, subject, however, to confirmation by the surrogate. Such a referee has the same power, and is entitled to the same compensation, as a referee appointed by the supreme court, for the trial of an issue of fact in an action; and the provisions of this act, applicable to a reference by the supreme court, apply to a reference, made as prescribed in this section, so far as they can be applied in substance, without re. gard to the form of the proceeding.

L. 1870, ch. 359, 6, amended. Matter of Douglas, 3 Redf. 538; Matter of Pollock, id. 100; Boughton v. Flint, 74 N. Y. 476; Westervelt v. Gregg, 1 Barb. Ch. 469; Smith v. Van Kuren, id. 473; Abercrombie v. Holder, 63 N. Y. 628; s. c., 4 Hun, 141.

§ 2547. Trial by jury; when ordered. The surrogate may, in his discretion, make an order, directing the trial by a jury, at a circuit court to be held within the county, or in the county court of the county, or, in the city and county of New-York, in the court of common pleas, of any controverted question of fact, arising in a special proceeding for the disposition of the real property of a decedent, as prescribed in title fifth of this chapter. The order must state, distinctly and plainly, each question of fact to be tried; and it is the only authority necessary for the trial.

2 R. S. 102, part of 11 (2 Edm. 106), amended; L. 1847, ch. 280, 45 (4 Edm. 568); see 823, ante.

§ 2548. Id.; how reviewed.—A trial by a jury, pur.

suant to an order made as prescribed in the last section, can be reviewed, in the first instance, only upon a motion for a new trial. A new trial may be granted by the surrogate, or the court in which the trial took place, or, if it took place at the circuit court, by the supreme court, in a case where a new trial of specific questions of fact, tried by a jury, pursuant to an order for such a trial, made in an action, would be granted. The verdict of the jury must be certified to the surrogate's court, by the clerk of the court in which the trial took place.

Id., remainder of 11, amended; see 1001 and 1003, ante. ? v. Cole, 17 Hun, 507.

Webster

§ 2549. Appeal from order thereupon. An appeal may be taken from an order, made upon a motion for a new trial, as prescribed in the last section, as if the order had been made in an action, and with like effect. Costs of such an appeal may be awarded by the appellate court, as if the appeal was from an order or decree of the surrogate's court.

New. See2589, post.

ARTICLE THIRD.

DECREES AND ORDERS; AND THE ENFORCEMENT THEREOF. COSTS AND FEES.

SEC. 2550. Definition of "final order" and "decree."

2551. Decree settling an account, to contain summary thereof.
2552. Decree or order; when evidence of assets.

2553. Decree for money; how docketed.

2554. Enforcement of decree by execution.

2555. Id.; by punishment for contempt.

2556. Definition of "order"; how enforced.
2557. Costs; how made payable.

2558. Id.; when awarded.

2559. Id.; how awarded.

2560. Id.; when the same as in supreme court.

2561. When surrogate to fix amount of costs.

2562. Additional allowance in settling accounts.

2563. Allowance upon sale of real property.

2564. Id.; no commissions allowed.

2565. Fees of appraiser.

2566. Id.; other officers, and witnesses.

2567. Fees of the surrogate.

§ 2550. Definition of "final order " and " decree."The final determination of the rights of the parties to a special proceeding in a surrogate's court, is styled, indifferently, a final order, or a decree.

New. McNaughton v. Chave, 5 Abb. N. C. 225.

2551. Decree settling an account, to contain summary thereof.-Each decree, whereby an account is judicially settled, must contain, in the body thereof, a summary of the account as settled; or must refer to such a summary, which must be recorded in the same book, and is deemed a part of the decree.

L. 1837, ch. 460, 22 (4 Edm. 487), amended; see 2498, subd. 4, ante.

2552. Decree or order; when evidence of assets. -A decree, directing payment by an executor, administrator, or testamentary trustee, to a creditor of, or a person interested in, the estate or fund, or an order, permitting a judgment creditor to issue an execution against an executor or administrator, is, except upon an appeal therefrom, conclusive evidence that there are sufficient assets in his hands, to satisfy the sum which the decree directs him to pay, or for which the order permits the execution to issue.

2 R. S. 116, part of 21 (2 Edm. 121), amended. Mount v. Mitchell, 31 N. Y. 356.

$2553. Decree for money; how docketed.-Where a decree directs the payment of a sum of money into court, or to one or more persons therein designated, the surrogate, or the clerk of the surrogate's court, must, upon payment of his fees, furnish to any person apply. ing therefor, one or more transcripts, duly attested, stating all the particulars, with respect to the decree, which are required by law to be entered in the clerk's docket-book, where a judgment for a sum of money is rendered in the supreme court, so far as the provisions of law, directing such entries, are applicable to such a decree. Each county clerk, to whom such a transcript is presented, must, upon payment of his fees, immediately file it, and docket the decree in the appropriate docket-book, kept in his office, as prescribed by law for docketing a judgment of the supreme court. The docketing of such a decree has the same force and effect, the lien thereof may be suspended or discharged, and the decree may be assigned or satisfied, as if it was such a judgment.

L. 1837, ch. 460, 22 63, 64 (4 Edm. 498), amended; L. 1844, ch. 104, 82 (4 Edm. 627); L. 1867, ch. 782, 19 (7 Edm. 169). Davies v. Skidmore, ¡5 Hill, 501; Townsend v. Whitney, 75 N. Y. 425.

2554. Enforcement of decree by execution - A

decree, directing the payment of a sum of money into court, or to one or more parties, may be enforced by an execution against the property of the party directed to make the payment. The execution must be issued by the surrogate, or the clerk of the surrogate's court, under the seal of the court, and must be made returnable to the court. In all other respects, the provisions of this act, relating to an execution against the property of a judgment debtor, issued upon a judgment of the supreme court, and the proceedings to collect it, apply to an execution issued from the surrogate's court, and the collection thereof, the decree being, for that purpose, regarded as a judgment; except that the proceedings prescribed in title twelfth of chapter seventeenth of this act, if founded upon such a decree, must be taken, as if the decree was a judgment of the county court, or, in the city of New-York, of the court of common pleas.

Id., remainder of 64, amended. See Mount v. Mitchell, 31 N. Y. 356; s. c., 19 Abb. Pr. 1.

2555. Id.; by punishment for contempt.-In either of the following cases, a decree of a surrogate's court, directing the payment of money, or requiring the performance of any other act, may be enforced, by serving a certified copy thereof upon the party against whom it is rendered, or the officer or person who is required thereby, or by law, to obey it; and if he refuses or wilfully neglects to obey it, by punishing him for a contempt of court:

1. Where it cannot be enforced by execution, as prescribed in the last section.

2. Where part of it cannot be so enforced by execution; in which case, the part or parts, which cannot be so enforced, may be enforced as prescribed in this section.

3. Where an execution, issued as prescribed in the last section, to the sheriff of the surrogate's county, has been returned by him wholly or partly unsatisfied.

4. Where the delinquent is an executor, administrator, guardian, or testamentary trustee, and the decree relates to the fund or estate, in which case the surrogate may enforce the decree as prescribed in this section, either without issuing an execution, or after the return of an execution, as he thinks proper.

If the delinquent has given an official bond, his imprisonment, by virtue of proceedings to punish him for a contempt, as prescribed in this section, or a levy upon his property by virtue of an execution, issued as prescribed in the last section, does not bar, suspend, or otherwise affect an action against the sureties in his official bond.

New. See L. 1867, ch. 782, 15; see 1241. Matter of Watson, 69 N. Y. 536 People ex rel. Crouse . Cowles, 4 Keyes, 38; s. c., 3 Abb. Ct. App. Dec. 507; Matter of Latson, 1 Duer, 696; Doran v. Dempsy, 1 Brad. 490; Seaman r. Duryea, 11 N. Y. 324; s. c., 10 Barb. 523; Freer's Case, 15 Abb. Pr. 350; Saltus v. Saltus, 2 Lans. 9; Matter of Watson, 5id. 466; 8. C., 3 id. 408; Woodhead's Estate, 1 Tuck. 92; Seaman v. Whitehead, 18 Hun, 64; Matter of Espie, 3 Redf. 270; Marshall v. Hitchcock, id. 461; Matter of Lane, id. 462, n.; Timpson's Estate, 15 Abb. N. S. 230; Estate of Sherry, 7 Abb. N. C. 390; People v. Marshall, id. 380; People . Pelham, 14 Wend. 48; see Perry v. Mitchell, 5 Denio, 537; O'Toole's Estate, 1 Tuck. 39; Butler's Estate, id. 87.

§ 2556. Definition of "order"; how enforced.A direction of a surrogate's court, made or entered in writing, and not included in a decree, is styled an order. It may be enforced in like manner as a similar order, made by the supreme court in an action; and the costs are the same as upon such an order, and may be collected in like manner.

New. See 767, ante.

§ 2557. Costs; how made payable.- Except where special provision is otherwise made by law, costs, awarded by a decree, may be made payable by the party personally, or out of the estate, or fund, as justice requires; but costs, other than actual expenses, cannot be awarded to be paid out of an estate or fund, which is less than one thousand dollars in amount or value.

2 R. S. 223, 10 (2 Edm. 232); L. 1866, 784 (6 Edm. 831); L. 1867, ch. 782,8 (7 Edm. 169). Noyes v. Children's Aid Society, 70 N. Y. 481; Clocke v. Iggleson, 3 Redf. 339.

2558. Id.; when awarded.-The award of costs in a decree is in the discretion of the surrogate, except in one of the following cases:

1. Where special directions, respecting the award of costs, are contained in a judgment or order, made upon an appeal from the surrogate's determination, or upon a motion for a new trial of questions of fact tried by a jury; in either of which cases, costs must be awarded according to those directions.