In re the Settlement of the Accounts of Collins ( 1886 )

Dykman, J.

This is an appeal from an order of the surrogate of Kings county directing a witness to answer a question propounded to him before a referee. The proceeding was inaugurated for the settlement of the accounts of executors of John Oollins, deceased. One of the executors died, and when this proceeding was instituted the surrogate appointed a referee to take testimony and report the same to him. Andrew Gr. Oollins, a son of the testator was appointed an executor, and received letters testamentory on the attainment of his majority, and he was called as a witness before the referee and requested to read from an account book kept by the deceased executor, O’Leary. Objection was interposed by the counsel for the executor which was overruled by the referee. Thereupon an order was obtained from the surrogate requiring the witness to show cause before him on a certain day why he should not be punished for contempt, and on the return day of that order to show cause, the surrogate made an order directing the witness to answer the question before the referee, and reserving all questions respecting the competency of the proposed testimony until the coming in of the referee’s report. From that order we have this appeal which is plainly premature.

Interlocutory rulings respecting the admission or exclusion of testimony on the trial of a cause cannot be reviewed separately as they are made. The order appealed from directs tho witness to answer a question before the referee, and does no more and has no greater effect than the ruling of the referee in favor of the admission of the testimony. If the ruling be erroneous, the error is to be corrected on appeal from the final decree, when all the questions presented by the record will fall legitimately under review.

The order should be affirmed with ten dollars costs and disbursements.