Majority
p. 569In the Matter of the Application of Marie Jannette Plumb.[1] (Court of Appeals, Filed October 28, 1892.)
Headnote
Surrogates—Appeal—Commission to take testimony.A surrogate has discretionary power under §2588 of the Code of Civil. Procedure to issue a commission to take the testimony of witnesses in A foreign country, and where there is no abuse of discretion, no appeal hesito this court from the order for such commission.
p. 570
Appeal from a judgment of the supreme court, general term, first department, affirming an order of the surrogate in the above entitled proceeding to take the testimony of witnesses in England.
Henry Thompson, for app’lt; David McClure, for resp’t.
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. Á question is made that in such a proceeding as dhis'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 surrogate,-under § 2538 of the 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 commission, and the, appeal must, therefore, be dismissed, with costs.
All concur.