In re Miller

37 N.Y.S. 447, 72 N.Y. St. Rep. 718, 2 A.D. 615

Opinion

PER CURIAM.

The surrogate’s court has made no final order directing a sale of the decedent’s real estate for the payment of debts. This is an appeal from an order denying a special motion made by the heirs of the decedent to dismiss this proceeding. When the case is heard in surrogate’s court it may be shown0 that all of the facts which the appellant asserts should have been alleged in the petition actually exist, and so the case will be brought within section 2474 of the Code of Civil Procedure, and then the surrogate’s court may, if it is deemed proper, permit the amendment of the petition.

Order affirmed, with $10 costs and disbursements.