In re the Probate of the Last Will & Testament of Gerbereux

Slater, S.

This is an application to take a deposition without the state, pursuant to section 888 of the Code of Civil Procedure.

Surrogate Fowler, in Matter of Hodgman, 107 Misc. Rep. 70, denied an application for examination before trial within the state on a contested probate. Afterward, a mandamus was granted to compel the surrogate to grant the application for examination before trial. People ex rel. Lewis v. Fowler, 107 Misc. Rep. 253. Upon appeal, the Appellate Division, first department, held that a mandamus will not lie to compel a surrogate to issue an order for examination before…