
    Peter Sims, as Trustee of Samuel A. Gadsby, Deceased, Appellant, v David Manley et al., Respondents.
    Argued March 25, 1987;
    decided April 23, 1987
    
      APPEARANCES OF COUNSEL
    
      Peter Sims, appellant pro se.
    
    
      Laurence H. Pearson and David W. Weschler for David Manley, respondent.
    
      James B. Fishman, Morton B. Dicker, John Kirklin and Lynn M. Kelly for Mary Morris, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

In reviewing the decision of the Appellate Division it is apparent that the Appellate Division substituted its discretion for that of the Surrogate’s Court’s in reversing that court’s discretionary order transferring to the Surrogate’s Court two summary proceedings pending in the Civil Court, New York County, and consolidating those proceedings with a discovery proceeding brought by petitioner as trustee under decedent’s will. The Appellate Division granted leave to appeal to this court and certified the following question: "Was the order of this Court, which reversed the order of the Surrogates Court, properly made?” Based on the record in this case, we cannot say that there was an abuse of discretion as a matter of law by the Appellate Division in substituting its discretion for that of Surrogate’s Court. Hence, the only remaining question certified is whether the Appellate Division had the power to grant the requested relief (see, Herrick v Second Cuthouse, 64 NY2d 692, 693). We conclude that it had this power, and pass on no other issue.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, and certified question answered in the affirmative in a memorandum.  