In re the Will of Rothchild

An application to take testimony of witnesses residing outside the State by written interrogatories does not present an appropriate occasion to pass upon the merits of- an issue raised by the pleadings at least where the pleading is adequate on its face and there has been no direct attack upon it. (Wightman v. Wightman, 173 App. Div. 701; Ganni v. Stallman, 200 App. Div. 485; Bloede Co. v. Devine Co., 211 App. Div. 180; Moffat v. Phoenix Brewery Corporation, 247 App. Div. 552.)

The order should be reversed and the motion granted.

Martin", P. J., and Cohn", J., concur with Peck, J.; Callahan,…