In re the Probate of the Will of Waldman

In a probate proceeding in the Surrogate’s Court, Queens County, testator’s daughter, a legatee with the same fractional interest whether her father died testate or intestate, appeals from an order dated January 4, 1956, dismissing her objections to probate. The notice of appeal also brings up for review another order dated January 4,1956, insofar as it dismissed her notice to examine the respondents Waldman, proponents and legatees, and respondent Smith, the remaining legatee. On 981 February 14, 1956, this court denied a motion to dismiss the appeal on the ground that the orders are not appealable, without prejudice to renewal of the motion upon the argument. The motion to dismiss the appeal has been renewed. Motion to dismiss appeal granted,' without costs, and appeal dismissed. The orders are intermediate orders (Surrogate’s Ct. Act, § 78) which affect no substantial right and are therefore not appealable. (Surrogate’s Ct. Act, § 288.) We have, however, examined the merits and, if the appeal were not being dismissed, we would affirm the orders, on the ground that appellant is not entitled to contest probate. (Matter of Ballmann, 198 Misc. 916.) Present — Nolan, P. J., Beldoek, Murphy, Hallinan and Kleinfeld, JJ.