
    In the Matter of the Estate of Joseph Gall, Deceased.
    Laches — affidavits used, in a Surrogate’s Court and, upon appeal will not thereafter ■ he stricken from the record as divulging a privileged communication.
    
    Affidavits read in a proceeding in a Surrogate’s Court and made a part of the record on an appeal from its determination, will not, after they have been used for all the purposes for which they were made and when no further use of them is contemplated, be stricken out upon the ground that they divulged a, privileged communication.
    Appeal from an order which denied a motion of Charles F. Gall to strike the affidavits of Abram Kling and Charles E. O’Connorfrom the records of the court.
    
      Ira Leo Bamberger [Fernando Solinger with him on the brief], for the appellant.
    
      Alfred E. Mudge, for the respondent, The American Surety-Company.
   Per Curiam:

We agree with the learned surrogate that whatever right the petitioner had to have the affidavits mentioned in the motion disregarded and stricken from the record, his motion came too late, and for that reason should be denied. One of the affidavits was sworn to October 1, 1898, and the other November 1 of the same year. They were both read upon the proceeding in the Surrogate’s Court, and were "made a part of the record on appeal from such determination. The only objection which was raised thereto by the petitioner was that the matter in the affidavits could not be considered for the reason that it divulged a privileged communication; and this objection has been considered in dealing with them. Plaving thus acquiesced in the use of these affidavits, and they having been considered by the court as a part of the record in the proceeding, and having been used for all of the purposes for which they were made, and no further use of them being contemplated, we think there is no way in which the petitioner can be prejudiced by them, and that there has been such laches in making the motion that it ought not now to he granted.

The order should, therefore, be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  