2. 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 two thousand four hundred and eighty seven of this act, must be made..

§ 2485. Where the surrogate of any county, except New York or Kings, is precluded or disqualified from acting with respect to any particular mat ter, 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 designa. tion, and may exercise the same in either county.

§ 2486. [am'd 1881.] In the county of New York, the court of common pleas for that city and county, at a special term thereof, 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 jurisdic tion 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.

§ 2487. 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 two thousand four hundred and eighty-five, by affidavit or oral testimony.

2. [am'd 1887.] 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 or der of a justice of the supreme court of the judicial district 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 made and filed, the powers and duties of the surrogate therein designated, as specified in that section, thenceforth cease.

§ 2488. 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 offi cer or court, empowered to discharge the duties of the office of surrogate; and, if it relates to a particular master only, it must designate that matter.

It may, in the discretion of the court, require an officer to give security, for the due discharge of his duties therein. Where the office of surrogate is vacant, or the surrogate is disabled by reason of lunacy, the attorney. general, if directed by the governor, must, or the district-attorney, upon his own motion, may, apply for the order; and the general term must grant it upon his application. The general term may also grant the order, upon the application of a party, or a person about to become a party, to any specia' proceeding in the surrogate's court. Where the surrogate is sick or absent, the granting of the order rests in the discretion of the court, and its effect may be qualified, as the court thinks proper.

§ 2489. Where an order is made by the general term, as prescribed in the last two sections, or an appointment is made by the board of supervisors, as prescribed in section two thousand four hundred and ninety-two of this act, for any cause except a vacancy in the office of surrogate, it may be revoked, without prejudice to any proceedings theretofore taken by virtue thereof, by the general term of the department embracing the surrogate's county, upon proof that it was improvidently made, or that the cause of making it has become inoperative. Such an order or appointment, made upon the ground that the surrogate's office is vacant, is superseded, without any formal revocation, by the filling of the vacancy. After the order or

appointment is revoked, or the vacancy is filled, as the case may be, the unfinished business, in any proceedings taken by virtue of the order or appointment, must be transferred to, and may be completed by, the surrogate, in the same manner and with like effect, as where a new surrogate completes the unfinished business of his predecessor.

§ 2490. In a special proceeding cognizable before a surrogate, taken in the court of common pleas, or the supreme court, as prescribed in this article, the seal of the court in which it is taken, must be used, where a seal is necessary. The special proceeding must be entitled in that court; and the papers therein must be filed or recorded, as the case may be, and issues therein must be tried, as in an action brought in that court. The clerk of that court must sign each record, which is required to be signed by the Burrogate or the clerk of the surrogate's court. The issuing of a citation may be directed, and any order intermediate the citation and the decree may be made, by a judge of the court.

$2491. The court may, at any time, in its discretion, upon being satisfied that the reason for the exercise of its powers and jurisdiction has ceased to operate, make an order to transfer to the surrogate's court, any matter then pending before it. Such an order operates to transfer the same accordingly. Immediately after such a transfer, or after the revocation of the order of the general term, as prescribed in the last section but one, the surrogate must cause entries to be made in the proper book in his office, referring to all the papers filed, and orders entered, or other proceedings taken, in the court of common pleas, or the supreme court; and he may cause copies of any of the orders or papers to be made, and recorded or filed in his office, at the expense of the county.

$2492. In any county, except New York or Kings, if the surrogate is disabled, by reason of sickness, absence, or lunacy, or the office of surrogate becomes vacant before the expiration of a full term, and there is no special surrogate, or special county judge of the same county, who is competent and able to act as surrogate, the board of supervisors may, in its discretion, appoint a suitable person, to act as surrogate, until the surrogate's disabil ity ceases, or bis term of office expires, if the disability continues until then;

or until a special surrogate or a special county judge is elected or appointed. A person so appointed must, before entering upon the execution of the duties of his office, take and file an oath of office, and give an official bond, as prescribed by law, with respect to a person elected to the office of surro gate.

§ 2493. An officer, or a person appointed by the board of supervisors, who acts as surrogate of any county during a vacancy in the office, or in consequence of disability, as prescribed in the last nine sections, must be paid, for the time during which he so acts, a compensation equal, pro rata, to the salary of the surrogate; or, in a county where the county judge is also surrogate, to the salary of the county judge. The amount of his com pensation must be audited and paid, in like manner as the salary of the sur Where an officer of rogate, or of the county judge, as the case may be. the county performs the duties of the surrogate, with respect to a particular matter, wherein the surrogate is disqualified or precluded from acting, the supervisors of the county must allow him a just compensation for his services therein, to be audited and collected in the same manner.

§ 2494. Where an act is done, or a proceeding is taken by, before, or by authority of, an officer, or a person appointed by the board of supervisors, temporarily acting as surrogate of any county, as prescribed in this article, the same must be recorded, or the proper minutes thereof must be entered, in the books of the surrogate's court, in like manner as if the same was done or taken by, before, or by authority of the surrogate of the county; and the officer or person so acting, or the clerk of the surrogate's court, must sign the certificate of probate and any letters so issued, and must certify the record thereof in the book.

2495. A surrogate shall not be counsel, solicitor, or attorney, in a civil action or special proceeding, for or against any executor, administrator, temporary administrator, testamentary trustee, guardian, or infant, over whom, or whose estate or accounts, he could have any jurisdiction by law.

§ 2496. In addition to his general disqualifications as a judicial officer, a surrogate is disqualified from acting upon an application for probate, or for letters testamentary, or letters of administration, in each of the follow ing cases:

1. Where he is, or claims to be, an heir or one of the next of kin to the decedent, or a devisee or legatee of any part of the estate.

2. Where he is a subscribing witness, or is necessarily examined or to be examined as a witness, to any written or nuncupative will,

3. Where he is named as executor, trustee, or guardian, in any will, or deed of appointment, involved in the matter.

§ 2497. An objection to the power of a surrogate to act, based upon a disqualification, established by special provision of law, other than one of those enumerated in the last section, is waived by an adult party to a spe cial proceeding before him, unless it is taken at or before the joinder of issue by that party; or, where an issue in writing is not framed, at or before the submission of the matter or question to the surrogate.

$2498. Each surrogate must provide and keep the following books: 1. A record-book of wills, in which must be recorded, at length, every will, required by law to be recorded in his office, with the decree admitting it to probate, and also, if the probate is not contested, the proof taken

theroupon.

2. A record-book of letters testamentary and letters of administration, in which must be recorded all such letters, issued out of his court.

3. A record-book, in which must be recorded every decree, whereby the account of an executor, administrator, trustee, or guardian is settled.

4. A book, containing a minute of every paper filed, or other proceeding taken, relating to the disposition of the real property of a decedent, and a record of every order or decree, made thereupon; with a memorandum of every report made, and other proceeding taken, founded upon a decree for such a disposition.

5. A book, containing a record of every decree or order, the record of which is not required by this section to be kept elsewhere; together with a memorandum of each execution issued, and of the satisfaction of each decree recorded therein.

6. A book, in which must be recorded all letters of guardianship, issued out of his court.

7. A book of fees and disbursements, in which must be entered, by items, all fees charged or received by him for services or expenses, and all dis. bursements made or incurred by him, which are chargeable against those fees, or to the county.

The expense of providing the books specified in this section is a county charge.

§ 2499. To each of the books, kept as prescribed in the last section, must be attached an alphabetical index, referring to the page of the book, where each subject may be found. The surrogate may keep two or more books, for a further division of the subjects specified in either subdivision of the last section; in which case, he must keep a separate index to each set of books. Each decree, revoking the probate of a will, or revoking or otherwise affecting letters testamentary, letters of administration, or letters of guardianship, or suspending or removing a testamentary trustee, or modifying or otherwise affecting any other decree, must be plainly noted at the end or in the margin of the record of the will, letters, or original decree, with a reference to the book and page where the subsequent decree is recorded. The books, kept as prescribed in the last section, appertain to the surrogate's office, and must be open, at all reasonable times, to the inspection of any person.

§ 2500. A surrogate must carefully file and preserve in his office, every deposition, affidavit, petition, report, account, voucher, or other paper, relating to any proceeding in his court; and must deliver to his successor all the papers and books kept by him.

§ 2501. The surrogate of each county, except New York, must, at his own expense, make a report to the board of supervisors of the county, on the first day of each annual meeting thereof, containing a statement, verified by his oath, of all fees received or charged by him for services or expenses, since the last report, and of all disbursements chargeable against the same, or to the county, stating particularly each item thereof.

§ 2502. The surrogate of the county of New York must, at his own expense, make and file in the office of the county clerk, a like report, between the first and twentieth days of January in each year.

§ 2503. A surrogate who admits to probate the will of a person, who was not a resident of the State at the time of his death; or grants original or ancillary letters testamentary upon such a will, or original or ancillary etters of administration upon the estate of such a person; must, within ten

days thereafter, transmit to the secretary of State, to be filed in his office, a certified copy of the will or letters. The surrogate's fees for making the copy, and the expenses of transmission, must be audited by the comptroller, and paid out of the treasury upon his warrant.

ARTICLE THIRD.

CLERKS; STENOGRAPHERS; MISCELLANEOUS PROVISIONS.

§ 2504. Surrogate's court; when to
open.

2505. When surrogate to attend.
2506. When and where court held by
county judge.

2507. Seal.

2508. Clerks in surrogate's office.
2509. Clerk of surrogates court; how
appointed; his powers.

§ 2510. Id.; surrogate liable for his acts. 2511. Clerk, etc., not to be appraiser,

attorney, etc.

2512. Stenographer for surrogate's
courts in New York and
Kings.

2513. Id.; in other counties.
2514. Definition of expressions used
in this chapter.

§ 2504. The surrogate's court is always open for the transaction of any business, within its powers and jurisdiction.

§ 2505. [am'd 1881.] The surrogate must, unless prevented by sickness or other unavoidable casualty, attend at his office on Monday of each week, except during the month of August, or where Monday is a public holiday, on the following Tuesday, to execute the powers conferred and the duties imposed upon him. But the surrogate of any county may, by an instrument in writing, under his hand, filed in the office of the clerk of the county at least twenty days before the first day of January in any year, designate a day of the week, other than Monday, on which he will attend at his office, or a month other than August, during which he will be absent therefrom, or both during that year; and where the county judge is also surrogate, he is not required to attend at his office on any day when the county court or the court of sessions is sitting. The surrogate must also execute the duties of his office, at such other times and places, within his county, as the public convenience requires. The surrogate of the county of New York may sign decrees, letters testamentary, of administration and guardianship, and orders to show cause, during the month of August or such other month as he shall designate for his vacation wherever he shall be passing such vacation within the State.

§ 2506. The surrogate's court, in a county where the county judge is also surrogate, may be held at the time and place at which the county court is held; and, in that case, the order of business of the county court, the court of sessions, and the surrogate's court, is under the direction of the county judge.

§ 2507. The surrogate's court has a seal, of which the surrogate has charge.

2508. Each surrogate may appoint, and at pleasure remove, as many clerks for his office, to be paid by the county, as the board of supervisors of his county, or, in the city and county of New York, the board of alder men, authorize him so to appoint. The board of supervisors or the board of aldermen, as the case requires, must fix the compensation of the clerk or clerks so appointed; and may authorize them, or either of them, to receive, for their or his own use, the legal fees for making copies of any record or paper in the office of the surrogate. A surrogate may appoint, and at pleas ure remove, as many additional clerks, to be paid by him, as he thinks proper,