In re the Estate of Nutter

Order insofar as it dismisses the petition affirmed; order insofar as it directs trial of the claim in Surrogate’s Court reversed on the law, without costs of this appeal to either party. Memorandum: Although the claim in question has not been rejected by the executrix, it does appear from the affidavit of the executrix that she claims a partial offset to the claim. Under such circumstances the dismissal of the application under section 217 of the Surrogate’s Court Act was a proper exercise of the Surrogate’s discretion. Until the claim is rejected there is no issue as to its validity…