Opinion
April 30, 1958
Appeal from the Niagara Surrogate's Court.
Present — McCurn, P.J., Kimball, Williams, Bastow and Halpern, JJ.
Order modified by striking from the first ordering paragraph the words "without prejudice to the renewal of said motion for consolidation in the Supreme Court to which trial of the issues in this proceeding will be transferred," and by striking from the second ordering paragraph the words "without prejudice to the contestants, hereafter to make application to the Supreme Court for a revision of this ordering paragraph," and as so modified, affirmed, without costs of this appeal to any party. Memorandum: In the exercise of discretion the motion for consolidation should be denied. The Surrogate had no authority to transfer the question for decision to the Supreme Court and, therefore, that portion of the order should be deleted as surplusage. All concur.