In re the Probate of the Last Will & Testament of Gerbereux , 109 Misc. 486 ( 1919 )

Slater, S.

This is an application to take a deposition without the state, pursuant to section 888 of the Code of Civil Procedure.

Surrogate Fowler, in Matter of Hodgman, 107 Misc. Rep. 70, denied an application for examination before trial within the state on a contested probate. Afterward, a mandamus was granted to compel the surrogate to grant the application for examination before trial. People ex rel. Lewis v. Fowler, 107 Misc. Rep. 253. Upon appeal, the Appellate Division, first department, held that a mandamus will not lie to compel a surrogate to issue an order for examination before trial of a party to a special proceeding; that the effect of the action of the Special Term was to substitute its discretion for that of the surrogate. The court further held, Justice Philbin dissenting, that applications for the examination of parties before trial, as provided in section 870 et seq. of the Code of Civil Procedure, do not apply to and have not been extended to proceedings in the Surrogate’s Court. 189 App. Div. 335.

The latter part of the opinion is apparently dictum and was not necessary to a decision to be rendered upon the appeal. I shall grant this application for a commission.

Application granted.