In re the Estate of Neumayer

256 A.D. 1039

Opinion

Appeal dismissed, without costs, as not appealable. Memorandum: We do not regard the order as one “ affecting a substantial right.” (Surr. Ct. Act, § 288.) If the will fails of probate, after an opportunity is afforded all parties appearing to submit proof upon issues raised by the answers, it will follow that no substantial right of the movants has been affected. If probate is granted after a trial of the issues, the movants may review upon an appeal from the final decree of probate the intermediate order by which their preliminary motion was denied. (Surr. Ct. Act, § 295; Matter of Loewenguth, 114 App. Div. 754, 755; Matter of O’Melia, 213 id. 387.) All concur. (The order denies an application to dismiss the proceeding for the probate of a will.) Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.