and 132 New York State Reporter affecting her character further than to remark that it was entirely proper and competent for the learned trial judge, upon the motion to set aside the verdict, to determine how far this militated against the weight, which should be attached to her version of the accident. There is another consideration which should be referred to briefly. The jury concluded to accept her version of the accident and that they were greatly prejudiced against the defendant because of the effort made to exaggerate her failings and associations, bad as they were, is shown, we think, by the size of the verdict, which, considering the position in life, the extent of the injuries, and the age of the plaintiff, was excessive. Were this the only question on this appeal it could be remedied. In Pesant v. Met. St. Ry. Co., 96 App. Div. 634, 89 N. Y. Supp. 314, where a similar question was involved, this court reversed the order, and reinstated the verdict upon condition that the plaintiff would stipulate to reduce it to a sum commensurate with the damages proved. In that case the real conflict was with respect to the amount of damage; whereas, in the case at bar, the question of whether the plaintiff sustained the burden of proof by establishing the two elements, of negligence and freedom from contributory negligence, by a fair preponderance of evidence was, as we have endeavored to point out, not free from doubt. The learned trial judge having after consideration resolved the question of the weight of evidence adversely to the plaintiff, we are unable to say that he erred or exceeded the discretion which was vested in him in ordering a new trial. We have not the disposition, even if we had the power, to lightly interfere with the discretion of a trial judge in setting aside a verdict because it is a power which is rightly vested in him, and which he is justified and should exercise in every case where he believes that the jury have been affected either by prejudice or passion, or where, upon all the facts, he thinks that in the interest of justice there should be a new trial before another jury. This was peculiarly a case in which the court had the right to determine whether, in the interests of justice, a new trial was proper; and there being nothing in the record from which we can conclude that his discretion was improperly exercised, the order setting aside the verdict must be affirmed, with costs. All concur, except PATTERSON, J., who dissents. In re SPRATHOFF'S ESTATE. APPEAL-SETTLEMENT OF CASE. Code Civ. Proc. § 2545, in relation to Surrogate Courts, provides that an exception may be taken to a ruling by a surrogate upon the trial by him of an issue of fact, including a finding or refusal to find on a question of fact in a case, where such an exception may be taken to a ruling of the court upon a trial without a jury of an issue of fact; and section 2576 provides that an appeal from a surrogate from a decree rendered on the trial of an issue of fact must be heard upon a case to be made and settled by the surrogate, as in making and settling of a case upon an appeal in an action. Held that, where an application for the revocation of letters of administration was heard by the surrogate on the moving papers and replying affidavits and exhibits, an application to settle a case on appeal and to make findings will be denied as not necessary to review on appeal; and appellant must print as his papers on appeal the papers recited in the order determining the proceedings, which should be certified by the surrogate, or stipulated to be the proper papers, in accordance with the rules governing such practice. Application by Anton Schmid for a settlement of a case on appeal and for findings, on the denial of an application by him for the revocation of letters of administration issued to Johanna Ilg on the goods, chattels, and credits of Louise Sprathoff, deceased. Application denied. See 98 N. Y. Supp. 1114. Paul C. Schnitzler, for the motion. CHURCH, S. The appellant in this matter presents an alleged proposed case on appeal and also a number of requests to find, and contends that, unless the papers which he presents as a case on appeal are settled, or unless the proposed findings are passed upon, there can be no review or appeal of the order made by this court. The question, when a proposed case should be made on appeal from the Surrogate's Court, or when findings should be signed upon the rendition of the decision of the surrogate, seems to perplex a great many, and there is a constant discussion arising upon various appeals as to what is the proper practice. It seems in order, therefore, in disposing of the question in this case, to outline my view upon this subject, which may be regarded by the bar as finally settling the line of conduct on this subject, unless such decision is modified by the Appellate Division. Beginning with the question of filing exceptions to a decision of the surrogate, we find the provisions in relation thereto contained in section 2545 of the Code of Civil Procedure. It will be noticed that it states that an exception to a ruling of the surrogate can be taken "upon the trial by him of" an issue of fact, including a finding or a refusal to find "upon the question of fact," and then provides that it shall be in the same cases of the court upon a trial without a jury of an issue of facts, and that the provisions of the Code relating to a trial by the court without a jury shall apply to a trial by the surrogate. Section 2576 of the Code provides that it is necessary to make and settle a case on appeal when such appeal is taken from a decree rendered "upon and 132 New York State Reporter the trial by the surrogate of an issue of fact." When we find these two sections of the Code both referring specifically to "a trial by the surrogate of an issue of fact," it is but fair to assume that the framers of the Code used the word "trial" in the ordinary sense in which it is employed by lawyers and courts, viz., where there was an issue of fact and testimony taken thereon, and that it was not intended to cover every hearing in the Surrogate's Court, the basis of which may consist solely of affidavits, records, or certified copies of documents; in other words, it is apparent that these provisions of the Code were designed with the intention of making the practice in the Surrogate's Court substantially the same as the practice in the Supreme Court. This view is taken by Redfield (6th Ed., Section 114): "The purpose of this requirement was to assimilate the practice on appeals from a surrogate's decree in the prescribed cases to that which regulates appeals from a judgment rendered by a court or a referee in an action." If it was the intention of the framers of the Code that every determination of the surrogate which was to be the subject of review could only be reviewed in the event of there being findings of fact and a proposed case on appeal settled, then the Code would not specially refer to a "trial of an issue of fact," but would simply state that in all cases findings should be made, and in all appeals a case should be prepared and settled. Not having done this, it is evident it was intended that upon the trial of an issue of fact the same practice should be adopted jupon such a trial and upon the appeal as would prevail upon such a trial by the court without a jury and appeal therefrom, and that in all hearings where the hearings proceeded simply upon affidavits and other documents the entry of a simple order thereon was all that was required, and that an appeal from such order would bring up the question on appeal the same as an appeal from an order granting or denying a motion in the Supreme Court. In the case at bar the matter was heard upon the papers of the moving party and also the papers submitted in opposition thereto. While findings were presented in the first instance, they were unnecessary, and a simple order disposing of such proceedings was ample to accomplish the result desired. A careful examination of the various cases referring to the requirement of findings in the Surrogate's Court fails to show anything in conflict with the views herein expressed. In Matter of Widmayer, 52 App. Div. 301, 65 N. Y. Supp. 83, the appeal was from a trial upon the probate of a will. In Matter of Daymon, 47 App. Div. 315, 61 N. Y. Supp. 997, it appeared that the hearing was had before the surrogate upon the final accounting, at which testimony was taken; in other words, a trial of an issue of fact was had. Matter of Roberts, 74 Hun, 630, 26 N. Y. Supp. 838, was a precisely similar proceeding. Matter of Sprague, 125 N. Y. 732, 26 N. E. 532, was also a trial of an issue of fact; so that it appears in all these cases that oral testimony was taken, necessitating findings of fact and the preparation of a case on appeal. On the other hand, the General Term of the First Department in Matter of Jackson, 32 Hun, 200, expressly recognizes the distinction suggested in this opinion, and sustains the correctness of the same in the following language of Judge Daniels: "The objection has been taken that the points urged in support of the appeal are not regularly before this court for its decision, for the reason that no case has been prepared or made as that has been directed by section 2576 of the Code of Civil Procedure; but, as the decree was not made upon a trial by the surrogate on an issue of fact, it is not within the practice prescribed by this action. The objections taken to it arise upon the decree itself and the will of the testatrix, and they may properly be heard and disposed of without a case, according to the practice provided for by the latter part of section 998 of the Code." The Appellate Division of this department has also recognized this as the correct practice. Matter of Marx, 106 App. Div. 212, 94 Ν. Y. Supp. 151. That case is on all fours with the case at bar, as it was a proceeding to remove an executor, and was heard on the moving papers and the replying affidavits and exhibits. An order was made denying the application, from which an appeal was taken. On the appeal the respondent strenuously urged that it could not be reviewed by the court, as there were no findings or requests to find. The court, however, ignored this contention, and considered the case on its merits, which they would not have done if they had regarded the above point well taken. The appellant should therefore print as his papers on appeal the papers recited in the order determining the proceeding, which papers should either be certified by this court or stipulated to be the papers by the attorney for the respondent, in accordance with the rules governing such matters. The application to settle the case on appeal or to pass upon the requests to find is denied. (49 Misc Rep 181) In re WARD. (Surrogate's Court, Cayuga County. January, 1906.) 1. GUARDIAN AND WARD-ACCOUNTING-INTEREST. In proceedings to compel a general guardian to settle his accounts. where it appears that he received from a former guardian, a larger sum than he charged himself with, which is included by a supplemental account, but there is no evidence as to what he did with the money, his account may be charged with such amount as such sum would have earned if deposited in a bank, from its receipt to the date of settlement. 2. SAME. A general guardian who was subsequently discharged had paid to his successor, out of the ward's funds, money as a loan to be used to defray the funeral expenses of a brother of the second guardian. The succeeding guardian acknowledged the indebtedness to the ward, though incurred before his appointment. Held, that his account could be surcharged with such sum, together with interest thereon. [Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Guardian and Ward, § 321.] 3. SAME-MAINTENANCE OF WARD. A guardian on an accounting is entitled to such a credit for board and maintenance of the ward as would have been authorized on an application made in advance. 4. SAME-COMMISSIONS-COSTS. Where the facts show a disposition on the part of a guardian to deplete the funds of the ward, he is not entitled to commissions, and is chargeable with costs of accounting. and 132 New York State Reporter In the matter of the judicial settlement of Frank Ward, guardian of Susie Ward Dresch. Decree entered. Frank S. Wright, for Susie Ward Dresch. John Kingston, for guardian. WOODIN, S. This is a proceeding instituted by the above-named ward, upon her attaining the age of 21 years, to compel her general guardian to account. The present guardian, a brother of the ward, was appointed upon her application, after reaching the age of 16 years, to succeed Sister De Chantel, a former guardian appointed while the ward was under 14. Upon the return of the citation in this proceeding, the guardian filed an account, in which he charged himself with the amount of $393.29, principal, and total interest, $27.10, and credited himself with numerous disbursements, amounting to $338. The guardian was examined at considerable length concerning the amount of money received by him and the disbursements made by him, and it appears that he had an informal settlement with the former guardian, after his appointment, and that she turned over to him the funds then in her hands belonging to the minor. Later in the proceeding, after an examination had been made of the bank records, from which it appeared that the guardian had received $75 more than he charged himself with, he filed a supplementary account, including this $75, which makes a total, including interest, of $495.39. In this supplemental account, however, he has stricken from the credit side certain items which were plainly improper and has included an item of $243, being a charge for 81 weeks' board of the ward at his house. Objections to the account were subsequently filed, demanding that this item of $243 for board be stricken from the account; also, that the account be surcharged with the amount of $25 received by the present guardian from the former guardian, prior to his appointment; and that he be charged with interest on the $75 above mentioned, and that he be denied his commissions and charged personally with the costs of this proceeding. Concerning the question of surcharging the account with interest on the $75 referred to, it is now conceded that the guardian received from the former guardian, at the time of his appointment, $195.39, instead of $420.39, as charged in his original account; but he only charges himself with bank interest upon an amount less the $75. It appears that the guardian kept all of the funds of the minor on deposit in the bank, with the exception of this $75, and such amounts as were drawn from the bank, from time to time, for expenditures on behalf of the ward. No proof is offered by the guardian as to what investment or other disposition of this $75 was made by him, and it necessarily follows that he must be charged with interest on that sum from the time he received it to the present time. His account may, therefore, be surcharged with an amount of interest which said sum of $75 would have earned if the same had been deposited in the bank with the other funds from the time of his appointment to the present time. In regard to the item of $25, alleged to have been paid to the present guardian by the former guardian, it is practically conceded that the present guardian had this money, and it appears from the uncontradicted testimony of Sister De Chantal, the former guardian, that the |