In re to Compel the Final Settlement of Plumb — 4 Silv. Ct. App. 651

Majority

p. 651

In the Application to Compel the Final Settlement of James Neale Plumb, as Guardian, etc.

Court of Appeals,

October 28, 1892.

Headnote

Deposition. Surrogate's court.—A surrogate has power in Ms discretion, under section 2538 of Code of Civil Procedure, to grant an order directing the issuing of a commission to examine before trial a party to a proceeding pending before it.

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 appellant.

David McClure, for respondent.

—We think there was no abuse of discretion

p. 652

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 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.