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

In the Application to Compel the Final Settlement of James Neale Plumb as Guardian, etc. 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. (Argued October 17, 1892; decided October 28, 1892.) 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 sarrogate, 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. H&rvry Thompson for appellant. Damid McCVu/re for respondent. [MAJORITY] Per Quriam opinion for dismissal of appeal. All concur." Appeal dismissed.