In the Matter of the Estate of Clara Loewenguth, Deceased. Christopher C. Werner and George H. Harris, Respondents; Emil J. Loewenguth and Louis E. Loewenguth, as Administrators, etc., of Clara Loewenguth, Deceased, Appellants

In the Matter of the Estate of Clara Loewenguth, Deceased. Christopher C. Werner and George H. Harris, Respondents; Emil J. Loewenguth and Louis E. Loewenguth, as Administrators, etc., of Clara Loewenguth, Deceased, Appellants. Fourth Department, July 12, 1906. Appeal — order overruling objections to jurisdiction not appealable until jurisdiction exercised—costs. An order of a surrogate overruling objections to his jurisdiction to fix the value of attorney’s services is not appealable until the surrogate has exercised such jurisdiction, for no substantial rights have been affected. When neither party raises the question of the appealability of the order the appeal should be dismissed, without costs. Appeal by Emil J. Loewenguth and another, as administrators, etc., of Clara Loewenguth, deceased, from an order of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 12th day of April, 1906, overruling the objections of the appellants to the jurisdiction of the court to hear the proofs of the petitioners Werner and Harris praying that the surrogate fix the value of their services as attorneys and counselors rendered the estate of said deceased. Hugh J. O'Brien, for the appellants. C. C. Werner, for the respondents. [MAJORITY — Nash, J.:] Nash, J.: The order is not appealable. It disallows and overrules the objections of the administrators to the jurisdiction of the court, but is not final as jurisdiction has not been exercised, and, therefore, does not involve a substantial right. (Matter of Soule, 46 Hun, 661; Matter of Phalen, 51 id. 208 ; Matter of Pearsall, 21 N. Y. St. Repr. 305 ; Matter of Burnett, 15 id. 116.) Neither party having raised the question of the appealability of the order, the appeal should be dismissed, without costs. All concurred. Appeal dismisséd, without costs, upon the ground that the order is not appealable.