Opinion
November 6, 1961
Motion by respondents to dismiss appeal granted. The appeal is from an order of the Surrogate's Court, Westchester County, entered September 28, 1961, framing issues for a jury trial, in a contested probate proceeding. The basis of the appeal is that one framed issue as submitted by the appellants was omitted from the order. In our opinion, in view of the issues included in the order, the omission of the one issue does not affect any substantial right of the appellants. Hence, the order is not appealable, and the appeal should be dismissed. We have, however, as indicated, examined the merits of the appeal and, if we did not dismiss the appeal we would be required to affirm the order in any event. Cross motion by appellants for a stay of the trial, pending appeal, denied. Nolan, P.J., Beldock, Christ, Pette and Brennan, JJ., concur.