
    In the Matter of the Estate of Richard S. Newcombe, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    Surrogates—Disqualification—Removal of proceeding.
    What amounts to a disqualification to act as a judicial officer and a surrogate is carefully defined by statute, and beyond that it is a matter of discretion with a judge whether he will act in a given case or not. But it is his duty to proceed with the trial of a cause unless he is himself satisfied that he should not do so.
    
      Appeal from order of surrogate denying motion to send issues in the above proceeding to the court of common pleas for a trial before a jury.
    
      Edward G. James, for appl’t; Donohue, Newcombe & Cardozo, for resp’t
   Per Curiam.

The appellant moved that the issues raised by the objections of the contestants to the probate of the will in this proceeding be sent to the court of common pleas for trial, upon the allegation that the surrogate was a personal friend of the deceased, and of the principal beneficiary under his will, and that the trial of the issues would involve the examination of many witnesses, and that the testimony would be conflicting to a great extent, and that consequently a jury trial was essential. In other words, the motion was a challenge of the right of the surrogate to perform the duties which the law imposed upon him. Of course, under such circumstances, a judge has no opportunity to answer insinuations of this character, and consequently no such right of challenge is or should be recognized by the law. What amounts to a disqualification to act as a judicial officer and a surrogate is carefully defined by statute, and beyond that it is a matter of discretion with a judge whether he will act in a given case or not. But it is his duty to proceed with the trial of a cause unless he is himself satisfied that he should not do so.

It rests entirely in the discretion of the surrogate whether he will or not remit proceedings to the court of common pleas for trial, and with that discretion this court has neither power nor inclination to interfere.

The order appealed from should be affirmed, with costs.

Van Brunt, P. J., O'Brien and Ingraham, JJ., concur.  