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MATTER PROBATE WILL PEARL E. SCHULMAN (03/10/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


March 10, 1969

IN THE MATTER OF THE PROBATE OF THE WILL OF PEARL E. SCHULMAN, DECEASED. WALTER H. SCHULMAN, APPELLANT. AUBREY M. EVANS ET AL., RESPONDENTS

Appeal from an order of the Surrogate's Court of Ulster County which, among other things, (1) denied objectant's application for a stay of this proceeding for the probate of decedent's purported will, pending the determination of an action brought in the Supreme Court to set aside a conveyance by decedent of certain realty and (2) directed that the parties be prepared to proceed to trial of the probate proceeding on September 17, 1968.

Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Cooke, JJ., concur in memorandum Per Curiam.

Author: Per Curiam

We perceive no reason to disturb the exercise of the Surrogate's Court's discretion in denying the stay requested. Matter of Mann (24 A.D.2d 780) and Matter of Tebin (7 A.D.2d 720), upon which appellant relies, are clearly inapposite, as appears from the memorandum decisions therein. The order, however, should have provided for the framing of issues, in advance of the jury trial demanded. (SCPA 502, subd. 4.)

Disposition

Order modified, on the law, so as to provide that the issues be framed by the Surrogate's Court in accordance with objectant's proposal thereof, heretofore filed, or otherwise as may be proper, and a new trial date fixed, and matter remitted to the Surrogate's Court for further proceedings not inconsistent herewith; and, as so modified, affirmed, without costs.

19690310

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