In re the Probate of the Last Will and Testament of Maurer

206 A.D. 811

Opinion

Order reversed, with costs to appellant, and matter remitted to Surrogate’s Court, with instructions to open the default upon such terms as will protect the executor for expenses properly incurred and money properly paid out, on the ground that it was error to hold that the surrogate did no.t have authority to open the default except for “ fraud, newly-diseovered evidence, clerical error or other sufficient cause.”

* (Matter of Wolfe, 181 App. Div. 35.) All concur, except Sears and Crouch, JJ., who dissent and vote for affirmance, on the ground that while the power of the surrogate to open the default was the same as that of a justice of the Supreme Court to open a judgment, it was necessary to show merits, and that no merits appear in this application.

See Surr. Ct. Act, § 20, subd. 6.— [Rep.