In re the Estate of Case

24 A.D.2d 797, 263 N.Y.S.2d 861, 1965 N.Y. App. Div. LEXIS 3234

Opinion

Aulisi, J.

Appeals from an order of the County Court of the County of Chemung, Trial Term, denying appellants’ motion to adjourn the trial and from a decree of the Surrogate’s Court of said county admitting to probate the will and codicil of Alice L. Case and granting letters testamentary to Paul M. Donovan. Appellants contend that the denial of an adjournment was an abuse of discretion and that the trial in Surrogate’s Court was defective because one of the appellants, a first cousin of the testatrix once removed, was not present. In view of the previous delay in these proceedings; the order of this court on March 15, 1965, to set the case down for trial (Matter of Case, 23 A D 2d 718); the adequate notice given to all interested persons; and the total failure of any of the objeetants, although duly notified, to appear at the trial, we cannot say that the Surrogate abused his discretion in denying an adjournment or in proceeding to trial. The conduct of a trial, including adjournments thereof, is within the discretion of the trial court. We should not interfere except in cases of abuse. It is our belief that sufficient time had elapsed since the death of the testatrix to enable appellants, with the exercise of due diligence, to prepare for trial and proceed therewith. (Surrogate’s Ct. Act, § 20, subd. 2; Paine v. Aldrich, 133 N. Y. 544; Borley v. Wheeler & Wilson S.M. Co., 12 N. Y. S. 45; 11 Carmody-Wait, New York Practice, § 53, pp. 36-37.) Decree and order affirmed, with costs to each party filing a brief payable from the estate. Gibson, P. J., Reynolds, Taylor and Hamm, JJ., concur.