
    In re MILLER.
    (Supreme Court, Appellate Division, Fourth Department.
    February 7, 1896.)
    .Probate Practice—Dismissal of Petition.
    Under Code Civ. Pr'oc. § 2474, providing that the surrogate’s court may, in its discretion, permit an omitted recital or allegation to be supplied by amendment, a motion to dismiss a proceeding for the sale of real estate for the payment of debts on the ground of insufficient showing of facts in the petition was properly denied, it appearing that no final order directing such sale had been made.
    Appeal from surrogate’s court.
    Petition of Benjamin 0. Miller to sell real estate of Helen E. Vick for the payment of debts. From an order denying a motion by the heirs of decedent to dismiss the proceeding, the heirs appeal. Affirmed.
    Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN,, and WARD, JJ..
    P. M. French, for appellant.
    W. E. Davis, for respondent.
   PER CURIAM.

The surrogate’s court has made no final order directing a sale of the decedent’s real estate for the payment of debts. This is an appeal from an order denying a special motion made by the heirs of the decedent to dismiss this proceeding. When the case is heard in surrogate’s court it may be shown0 that all of the facts which the appellant asserts should have been alleged in the petition actually exist, and so the case will be brought within section 2474 of the Code of Civil Procedure, and then the surrogate’s court may, if it is deemed proper, permit the amendment of the petition.

Order affirmed, with $10 costs and disbursements.  