Opinion
December 19, 1949.
Appeal from Surrogate's Court, Kings County.
Order affirmed, without costs, but without prejudice to a new application for the same relief on all the evidence in appellants' possession. The order appealed from did not represent an improvident exercise of discretion on the facts presented in the affidavits. While this court is not permitted to consider the new and additional facts presented because this is not an appeal on the facts from a final decree or order (Surrogate's Ct. Act, § 309), the appellants should be permitted to have the Surrogate consider the new and additional facts which were not before him at the time the original application was made. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur. [ 192 Misc. 1032.] [See ante, p. 857.]