In re Jeschke

258 A.D. 910, 16 N.Y.S.2d 356, 1939 N.Y. App. Div. LEXIS 7551

Opinion

Proponent in a probate proceeding appeals from an order directing the issuance of a commission to a foreign country and the taking of testimony thereunder upon interrogatories. Order of the Surrogate’s Court of Kings county modified by striking from the decretal paragraph thereof the words “ on the issue of the relationship of the objectants to the decedent herein ” and as so modified affirmed, with twenty dollars costs and disbursements to respondents, payable out of the estate. Matter of Erlanger (231 App. Div. 70) and Norton v. Cromwell (248 id. 707), holding that there is no authority for the examination of a party or a witness on a preliminary motion separate and apart from a trial, are without application. All motions herein have been disposed of. The evidence sought by deposition relates to issues in the main proceeding determinable at the trial. In the interest of saving time and expense, the evidence to be adduced under the commission should not be restricted to the issue of the relationship of the objeetants to the deceased, but should embrace all issues to be determined at the trial so far as evidence relating thereto is available where the commission is to be executed. Lazansky, P. J., Carswell, Taylor and Close, JJ., concur; Hagarty, J., dissents from the modification and votes to affirm the order.