In re Compel the Final Settlement of Plumb

Headnote

Under the Code of Civil Procedure (§ 3588) a Surrogate’s Court has power in its discretion, to grant an order directing the issuing of a commission to examine before trial a party to a proceeding pending before it.

Appeal from order of the General Term of the Supreme Court in the first judicial department made May 13, 1892, which affirmed an order of the surrogate of New York county, directing a commission to issue to examine respondent as a witness in her own behalf upon objection to her guardian’s account.

The following is the opinion in full:

“ We think there was no abuse of discretion in granting the order appealed from, such as would enable this court to review the decisions of the surrogate and of the General Term of the Supreme Court on that ground. A question is made that in such a proceeding as this the surrogate had no power to grant the order for a commission.

“ For the reasons stated in the opinion of Judge O’Brien at the General Term in this proceeding, we think the sarro

gate, under section 2538 of tlie Code of Civil Procedure, had such power.

“ The power existing and there being no abuse of discretion, no appeal lies to this court from the order for such com mission and the appeal must therefore be dismissed, with costs.