Opinion
May Term, 1896.
A. Armstrong, Jr., for the appellants.
No appearance for the respondent.
On the 25th of May, 1895, letters of administration upon the estate of Samuel Westurn were issued to the appellants. Thereafter, on the 3d of January, 1896, upon petition of the respondent, verified December 18, 1895, a citation was issued by the Surrogate's Court, directed to the said administrators, requiring them to show cause why a decree should not be made revoking the letters issued to them. This citation was returnable February 12, 1896. Thereupon the appellants, upon notice to the respondent, made a motion in the Surrogate's Court on the 20th of January, 1896, to set aside the citation, on the ground that the petition did not furnish sufficient proof to authorize the citation. This motion was based solely on the petition and citation. Upon the hearing in the Surrogate's Court on the 20th of January, 1896, the preliminary objection was taken by the respondent that the citation had not been served on the administrators, and that they had no standing in court to make the motion. The motion was thereupon dismissed. From the order of dismissal the administrators appeal.
An appeal is allowed from an order of the Surrogate's Court when it affects a substantial right. (Code Civ. Proc. § 2570.) The motion in the present case was made before the return day of the citation, and before the citation was served. There is nothing in the papers indicating that any right of the appellants was affected in the absence of the service of the citation. Whether at that stage of the case a motion to vacate the citation would be entertained was in the discretion of the Surrogate's Court. The order of dismissal will not interfere with any motion the appellants may make after service is in fact made, or affect their rights upon the return day, even if the service of the notice of motion be deemed an appearance.
We are of the opinion that the order dismissing the motion did not affect a substantial right, and is, therefore, not appealable. (See Matter of Soule, 46 Hun, 661; affd., 109 N.Y. 662; Matter of Phalen, 51 Hun, 208; Matter of Burnett, 15 N Y St. Repr. 116; Tracy v. Reynolds, 7 How. Pr. 327.)
All concurred.
Appeal dismissed.