9 A.D.2d 571 | N.Y. App. Div. | 1959
'The plaintiffs-appellants appeal from (1) a judgment dismissing the plaintiffs-appellants’ complaint in the Supreme Court, Sullivan County, New York, for failure to prosecute, such dismissal being made by Mr. Justice Book-stein; (2) an order made by the Surrogate of Sullivan County overruling a special appearance contesting the jurisdiction of the Surrogate’s Court, and (3) a decree of the Surrogate of Sullivan County dismissing objections to the probate of certain wills made by the decedent, Chauncey Countryman, and admitting a certain will allegedly made by the said Chauncey Countryman to probate. While the record is somewhat barren of the usual papers and proceedings on appeal, considerable additional information has been furnished by the attorney for the appellants by way of letters, affidavits and minutes of proceedings at Special Term in Monticello on the 16th-20tli of October, 1958. We conclude that under the unusual circumstances the order of Mr. Justice Book-stein, dated October 29, 1958, was proper and entirely within his discretion. The matter had been brought before him on a prior occasion and he was thoroughly familiar witih the merits of the action and any other aspects of the controversy. We are also asked to consider the order of the Surrogate of Sullivan County dated the 5th of November, 1958. Peculiar to this case there is no record as to the proceedings before the Surrogate but an examination of the order discloses a determination that appellants herein failed to participate in the trial in that court and having in mind the proceedings in Supreme Court, there appears to be reason for the exercise of the Surrogate’s discretion and justification for his dismissal on the merits. Orders unanimously affirmed, without costs. Present — Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ. [14Misc 2d 528.]