of newly discovered evidence is not governed by any well defined rule, but is addressed to the sound discretion of the court, and whether it should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view, solely, the attainment of that end." In defining what constitutes reasonable diligence, as applied to motions of this character, the court held, in Bonynge v. Waterbury, 12 Hun, 534, as follows: "The law exacts from parties and their counsel in the trial of an action only reasonable diligence, and when that has been observed, and notwithstanding its exercise, material evidence, not of a cumulative character, which would probably change the result, has eluded their discovery, and is subsequently discovered, a proper case is presented for a new trial."

Tested by these rules, I think this motion should be granted; the testimony certainly is material, is not cumulative, the moving parties have exercised reasonable diligence in obtaining the same, taking into consideration the fact that the administrator who had personal knowledge of these matters and could give explanations with reference to them is dead, and that the facts with reference to which the testimony relates if proven upon the trial would probably affect the result heretofore reached. If the Kellys were insolvent, as a matter of fact, then certainly the estate of John J. Harrigan should not be charged with the amount of this note. In defining active vigilance on the part of personal representatives of a deceased, Judge PECKHAM in O'Conner v. Gifford, 117 N. Y., at page 279 lays down the law as follows: "Active vigilance is a relative term, and what it is depends upon the facts appearing in each case. A debt being proved the presumption is that it is collectible, as solvency, and not the contrary, is to be presumed. But when the onus being shifted to the executor, is met by proof on his part of the absolute, irretrievable and hopeless insolvency of the debtor,

does any rule of active vigilance demand the institution of legal proceedings by the executor against such insolvent debtor? All the facts being in, the question arising for determination is whether the conduct of the executor has been guided by good faith, reasonable judgment and an intention to fairly and fully discharge his duty. If so, it cannot be that he should still be held liable for a devastavit."

The motion of the petitioner is, therefore, granted, opening the decree heretofore entered herein and providing for a new hearing upon the two issues mentioned and set forth in this petition, upon condition that the costs which are hereby fixed at $70 be paid to the respondent upon this motion within the period of five days from date hereof; if not paid within said period of time, then this motion is denied.

Decreed accordingly.

Matter of the Estate of CoSSUTH L. GEORGI, Deceased.

(Surrogate's Court, New York County, Filed August, 1901.)

1. SALE OF REAL ESTATE-WHEN A PETITION NEED NOT SHOW THE VALUE OF EACH PARCEL.

In a proceeding to sell the real estate of a decedent for the payment of his debts, the petition need not state separately the value of each parcel where the parcels lie together.

2. SAME-SERVICE OF CITATION.

Where parties named in the citation have been served with it, the omission of the Christian names of some of them and the failure to state the individual names of others, who were partners in firms cited, may be cured by amendment.

3. SAME.

Service of the citation upon tenants of the decedent's real estate, not named in the citation, does not confer jurisdiction of the tenants. 4. SAME WHERE PARTIES DIE AFTER CITATION ISSUED.

Where parties named in a citation die before service of it is made upon them, service of a citation in the same form upon their personal representatives does not confer jurisdiction of the parties deceased.

5. SAME TERMS OF PAYMENT.

Where the real property of the decedent is subject to a mortgage also covering the property of other persons, a sale, upon the an nounced terms, that the holder of the mortgage has consented that the purchaser may pay it off and that such payment will be allowed pro tanto in the proceeding as a deduction from the bid, is legal, and a purchaser, who signed the agreement of sale, cannot avoid the sale for such an arrangement as to payment.

Proceedings to sell real estate for the payment of debts. John Aitken, for petitioner; Daniel Daly, for purchaser; James M. Fisk, for Bowery Bank and certain creditors.

FITZGERALD, S.- The questions at issue between the parties hereto I dispose of as follows: 1. The first subdivision of the first objection interposed by the purchaser herein is overruled in view of section 2759, subdivision 3, taken in connection with section 2752, Code of Civil Procedure. 2. The objection as to the petitioner not giving the value of the different parcels of real estate is overruled. Matter of McGee, 5 App. Div. 527. 3. As the disposition of the other parcels referred to in the second subdivision of the first objection and the proceeds thereof are subject to the jurisdiction of the Supreme Court in the partition action (Matter of Dusenbury, Surr. Decs., 1901, p. 233, 34 Misc. Rep. 666), and as the heirs of the decedent and the parties to this proceeding, other than the objectant, take no exception to the alleged defects complained of by him, his objection is overruled. 4. The objection to the citation of Anderson is cured by the appearance of his attorney and the disclosure of his name as Andrew Anderson. 5. As to the other parties referred to in the third and fourth subdivisions of the first objection, who were concededly named in the citation and the same served upon them, the objection is to the omission of the Christian names of some of them and the failure to give the individual names of others of them composing business firms. This objection is overruled. An amendment, if necessary, can be made to

cure the alleged defect. Stuyvesant v. Weil, 167 N. Y. 421. 6. Besides the objection to the defect in the names of others mentioned in the fourth subdivision of the first objection, who are tenants of the property, it appears that they were not named in the citation herein, although a copy of the same was served upon them. This service, in my opinion, was ineffective to give the court jurisdiction over them. 7. Two of the parties named in the third subdivision of the first objection died before the service of the citation upon them, and no citation was issued to their representatives, although the latter have been served with the citation, in which they were not named. The omission of their names from the citation made the service thereof ineffectual to give the court jurisdiction over them. See Boerum v. Betts, 1 Dem. 471. 8. The sixth subdivision of the first objection is overruled. While the petitioner does not literally comply with the statute, I do not regard this as a substantial defect. 9. The seventh subdivision of the first objection is overruled for the reason stated in overruling the sixth subdivision of the first objection. 10. The fifteenth subdivision of the first objection is overruled, it having been obviated by new proof of publication recently filed. 11. The objection that the property was sold subject to a mortgage which partly covered other property not belonging to the decedent is overruled. By the terms of sale it was in substance stated that arrangements had been made with the holder of the mortgage by which the purchaser would be enabled to pay off the same, and that the payment would be allowed as a deduction from the amount bid by the purchaser. It is not claimed that there has been any obstacle to carrying out this arrangement or to the paying of the mortgage by the purchaser. The sale made was regularly confirmed and all parties, including the purchaser, received notice of the application for the confirmation of the report of sale.

None of the parties in interest other than the pur

chaser raise any objection as to the manner of sale, and he having by his purchase and the agreement of sale signed by him agreed to the terms of sale, and it nowise appearing how he could be injured if he complied with them, I do not think he is in any position to raise the question, which he presents as to the regularity of the sale. 12. The objections not hereinbefore specifically sustained are overruled. 13. For the reasons stated in paragraphs six and seven in sustaining the objections therein mentioned, the administrator's application is denied and that of the purchaser granted.

Application of administrator denied, and that of purchaser granted.

Matter of the Estate of HENRY B. BOLTON, Deceased.

(Surrogate's Court, New York County, Filed August, 1901.)

1. TRANSFER TAX-PENALTY FOR DELAY REMITTED FOR THE TIME DURING WHICH THE FUND HAS BEEN IN LITIGATION.

A penalty for delay in paying the transfer tax should be remitted for so much of the delay as has been caused by the fact that the fund was in litigation.

2. SAME-RECORD MUST SHOW PEOPLE HAVE DUE NOTICE.

An appraisal is not regular where the record does not show that the proper officers representing the People have had due notice.

3. SAME-REPORT.

The report of an appraiser must show the grounds of his findings.

Application for the remission of a transfer tax penalty.

A. Oldrin Salter, for estate; no other appearance.

FITZGERALD, S.-The suspension of the tax proceeding until the determination of the litigation referred to in the moving papers furnishes abundant reason for granting the application