In re the Probate of the Will of Mittelstaedt

Cox, J. (dissenting).

Objections were filed to probate of writing purporting to be the last will and testament of the testatrix, which in form appeared to be a carbon copy or a duplicate original will. The ribbon copy, although delivered to the testatrix, was not presented. The appeal herein concerns a supplemental decree entered in Surrogate’s Court, New York County, awarding costs to the contestant after two contested probate proceedings and two appeals to this court.

In the first trial, the Surrogate’s dismissal of the petition as a matter of law, after the close of proponent’s case, was…