Majority
Appeal from a decree of the Surrogate’s Court, Kings county, dismissing appellant’s claim against the estate of Patrick J. Harden, and directing the turnover of certain property. Decree reversed on the law and the facts, with costs to the appellant, payable out of the estate, and the matter remitted to the surrogate for further hearing. We think the determination of the surrogate upon the evidence before him was proper. In our opinion, however, he should not have closed the hearings without affording the claimant further opportunity to obtain the attendance of the daughter of the decedent as a witness. She is interested in the estate and appears by attorney. Her attorney states that he is unable to procure her attendance for examination as a witness, and cannot give an address where she can be served with process. The surrogate should exercise his power to compel the attendance of the witness. He may penalize her interest in the estate. Lazansky, P. J., Hagarty, Carswell, Davis and Adel, JJ., concur.