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In the Matter of the Petition of James Dempsey to Prove the Last Will and Testament of Katharine R. Brady, Late of the County of Kings, Home for the Aged, Little Sisters of the Poor, Appellant James Dempsey, as etc., of Katharine R. Brady, and Another
Order of the Surrogate’s Court of Kings county denying appellant’s motion for an order resettling an order framing issues affirmed, without costs. As appellant did not file an answer praying that the will be declared valid as to it even though it be held invalid as to Dempsey, the surrogate was justified in making the order appealed from. Appellant, if so advised, may move before the surrogate for permission to file such an answer.
If its application be granted, in the exercise of discretion, it may then move for an order framing the additional issues. Lazansky, P. J., Scudder, Tompkins, Davis and Johnston, JJ., concur. [155 Misc. 242.]