James E. Martinhoff, Appellant, v. John H. Martinhoff, Executor, etc., et al., Respondents

James E. Martinhoff, Appellant, v. John H. Martinhoff, Executor, etc., et al., Respondents. A surrogate has power, in proceedings to prove a contested will, after the testimony has been closed and the case submitted, to grant, an order on motion opening the case, to allow a witness to correct his testimony. The granting of the motion is in the discretion of the surrogate, and is not reviewable here. (Argued June 1, 1880; decided June 15, 1880.) This was an appeal from an order of General Term affirming an order of the surrogate of the county, of Kings. The proceedings were to prove the will of John H. Martinhoif, deceased. " The probate was contested. George C. Harwood, one of the witnesses to the will, testified as stated in the stenographer’s minutes, upon cross-examination, that he signed before the testator. After the case was submitted, upon an affidavit of said witness, to the effect that he intended to testify and supposed he did testify that he signed after the testator, and that such was the fact, the surrogate, on motion, made an order opening the proceedings so far as to allow a re-examination of the witness in reference to the execution of the will, and fixing a day for such re-examination. This was the order appealed from. The court say: “ The surrogate had power to make the order appealed from, and assuming that this court may review it, we think the power was properly exercised by him. Had his decision been otherwise, there would have been presented such an abuse of discretion as to require a reversal of his order. The reasons assigned by him, and by the learned judge at General 'Term, are very satisfactory, and the question presented requires no other discussion. But the matter was one as to which the surrogate had a discretion to exercise, and the appeal from his order should, therefore, be dismissed with costs.” George P. Avery for appellant. Henry C. Place for respondents. [MAJORITY] Daufobth, J., reads for dismissal of appeal. All concur. • Appeal dismissed.