
    Matter of the Will of Antonetta Iovinella, Deceased.
    (Supreme Court, Schenectady Trial Term,
    December, 1914.)
    Surrogate’s Court — when matter will be sent back to — petition for probate of will — when provisions of Code of Civil Procedure prior to September i, 1914, govern — Code Civ. Pro. §§ 2537, 2538.
    Where on petition for the probate of a will a citation was issued before September 1, 1914, the provisions of the Code of Civil Procedure as it then stood govern, and the matter should be concluded thereunder; therefore an order of the surrogate that the trial be had at a Trial Term of the Supreme Court in the county, the contestant having demanded a jury trial under sections 2537, 2538 of the Code of Civil Procedure, is unauthorized and the matter will be sent back to the Surrogate’s Court.
    Proceeding for the probate of a will.
    
      Henry S. Baehler, for the will.
    N. B. Spalding, for contestants.
   Yak Kirk, J.

A petition for the prohate of the will of the deceased was filed with the surrogate of Schenectady county and citations were issued thereon prior to September 1, 1914. I do not recall the date of the return of these citations. Either upon the return day or an adjourned day the contestants appeared and demanded a jury trial under the Surrogates’ Code, title II, article 2, sections 2537, 2538. The surrogate thereupon, assuming that the Surrogates’ Code applied, made an order that the trial be had at a Trial Term of the Supreme Court in Schenectady county. The proponent now objects that the case should proceed under the Code of Civil Procedure, and that the surrogate was without authority to order the case for trial in the first instance to the Supreme Court. In this contention I think he is correct. The Surrogates ’ Code went into effect September 1, 1914. The last section of the Surrogates’ Code, 2771, provides: “Nothing in this chapter shall repeal, amend or modify any existing law specially applying to any county which is inconsistent with any section of this chapter, nor in any manner affect any litigation, action or special proceeding pending at the time when this act takes effect; and such pending action or special proceeding shall proceed under the practice established, the same as though not affected by this act.” The proceeding for thé probate of this will was instituted in the Surrogate’s Court upon the filing of the petition and was a proceeding pending in the Surrogate’s Court at the time the Surrogates’ Code went into effect. The repeal of the provisions of the Code of Civil Procedure applicable, to Surrogates’ Courts could not nullify a proceeding instituted in the Surrogate’s Court. The Surrogate’s Court having acquired jurisdiction, under the provisions of the Code, then applicable, it seems to me the matter should have been concluded under the Code of Civil Procedure; and that that Code still had life extending to the completion of the pending proceeding. The matter should be sent back to the Surrogate’s Court. An order will be made accordingly.

Ordered accordingly.  