In re the Probate of the Will of Van De Walker

Ordinarily an order granting a commission to take the testimony of a witness without the jurisdiction rests in the sound discretion of the court at Special Term. In this case the order sending the issues arising under the contested probate to the Supreme Court for jury trial was made June 11, 1923. The cause was on the *162calendar of the Jefferson county Trial Term commencing October first. On that day it was properly on the day calendar for trial. It was then that the contestants moved to take the deposition of an alleged material witness in the State of Washington.

The moving affidavit makes no…