
    In the Matter of the Probate of the Last Will and Testament of Elizabeth Supple, Deceased. Harry J. Supple, as Executor, etc., of Elizabeth Supple, Deceased, Appellant; John P. Stephens, and William O. McCreery, as Special Guardian for Infant Parties, etc., Respondents.
   Appeal from an order denying petitioner appellant’s application for an order vacating a decree of the Surrogate’s Court of Kings County admitting to probate the last will and testament of Elizabeth Supple, deceased, dismissed, with ten dollars costs and printing disbursements to each respondent, payable out of the estate, without prejudice to the right of the appellant to apply in the Surrogate’s Court to be relieved of his default and present testimony. The proceeding was initiated by an order to show cause based upon a petition and affidavit of the appellant. The respondent Stephens filed his own and other affidavits in opposition to the motion and in rebuttal the petitioner served replying affidavits. The surrogate held that a question of fact was presented that required testimony to be taken. Upon the hearing the appellant moved that the surrogate disqualify himself because of a comment made in his memorandum setting the matter down for a hearing. The motion was denied and thereupon the appellant refused to offer any testimony. This resulted in the order being granted on default. Appeal from such an order will not lie. Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ., concur.  