
    Matter of the Petition of Joseph Mostofsky to Prove the Last Will and Testament of Harry Herman, late of the County of Kings, Deceased.
    (Surrogate’s Court, Kings County,
    May, 1915.)
    Motions and orders — when interlocutory order is not res adjudicata — motion to dismiss objections filed to probate denied.
    Ordinarily, an interlocutory order in an action is not res adjudicata.
    
    A decision o£ the Appellate Division, reversing an order granting alimony and counsel fees in an action for a separation upon the ground that the alleged marriage between the parties is void, is not conclusive on the plaintiff in said action in a proceeding to probate the will of her alleged husband, and a motion to dismiss objections filed by her to the probate of his will on the ground that the decision of the Appellate Division was res adjudicata on the question of marriage must be denied.
    Proceedings upon prohate of a will. Motion to strike out objections before trial.
    Randolph N. Souffront, for proponent.
    Alexander S. Drescher, for Esther Lehrman, contestant.
   Ketcham, S.

Objections to the probate of the will having been filed by one claiming to be the decedent’s widow, the proponent moves that the objections be stricken out before trial, on the ground that it has been decided by the Appellate Division of this department that the alleged marriage between the decedent and herself was void.

Such was the decision, but it was not made upon a trial of the issues. It was made in an action brought by the objectant against the decedent for limited divorce, and was the expression of the ground upon vvhich the Appellate Division reversed an order granting to her alimony and counsel fee. There may have been an order entered upon the decision, but no final judgment was rendered. None was possible.

Ordinarily an interlocutory order in an action is not a conclusive adjudication. Nothing is shown upon this motion to lift the determination of the Appellate Division out of the ordinary class. A fair test of its effect readily suggests itself, by which it must appear that the order or decision was not such final adjudication as would prevent a re-examination. If the order be not a final adjudication, in the sense that it stops any renewal of the controversy affected thereby, it would have had the same character and force in that action.

It would not have been a bar to the determination of the status of the parties thereto, if one of them had insisted upon a trial of the issues involved in the action in which the order of the Appellate Division was made. Clearly, if it could not be put in evidence against the alleged wife upon the trial of that action it cannot be availed of to conclude her in this proceeding.

Motion denied.  