On the 7th of December, 1899, there was • made in the Surrogate’s Court of the county of New York a decree admitting to pro- ' bate the will of William Tilden, and refusing probate of a paper which had been propounded as a codicil to that will. This proceeding was regular. All of the parties required by section 2615 of the Code of Civil Procedure were. cited to appear, and the evidence was sufficient tó warrant the decree which was made. . The codicil of which probate was refused was executed in the Territory of Arizona, but not with the formalities required by the law of this State. It was not made to appear what the requirements in the Territory of Arizona were upon that point. After the decree had been made and before the time to apjreal expired, the appellant here, the-Haven's Relief Fund Society, made a petition that "the decree be opened by the surrogate so far as it denied probate to the codicil. Citations were issued upon that petition; the defendant Costello, who alone was interested, appeared and opposed it, and the surrogate denied it, and from the order denying it this appeal is taken.
The power of the surrogate to open a decree is derived entirely from section 2481 of the Code of Civil Procedure, which authorizes him to open a decree or grant a new trial or a new hearing for fraud, newly-discovered evidence, clerical error, or other sufficient cause. (Matter of Hawley, 100 N. Y. 206; Matter of Flynn, 136 id. 287.) ■ Whether he will open the decree or not is a matter in his discretion, but from the exercise of that discretion an appeal undoubtedly lies to this court. (Story v. Dayton, 22 Hun, 450.)
We are of opinion that the discretion was properly exercised in this case.- By section 2617 of the Code, the appellant was. at liberty to come in and be heard in the proceeding before the surrogate for 'he probate of the will and codicil,-" if it desired to do so. After the decree of the surrogate had been made, refusing to admit the codicil to probate, the appellant was at liberty to appeal from that part of it. (Code Civ. Proc. § 2569.) While the appeal would undoubtedly have raised a question of fact as to what were -the requirements of the law of Arizona, with respect to the execution.of, *279•wills of personal property, yet that fact might have been proved upon the appeal, and this court would have the same power to decide it that the surrogate had. (Code Civ. Proc. § 2586.) It is quite clear, therefore, that there was no necessity for making this motion to protect the rights of the appellant. As no evidence was given before the surrogate as to what the law of Arizona was, undoubtedly he was right in refusing to admit the codicil to probate. He could only have been asked to open this decree upon the ground of newly-discovered evidence ; but the appellant here makes no proof which would warrant opening the decree upon that ground.. It does not appear that the appellant was not aware of what the law of Arizona was; and certainly there could have been no difficulty in procuring evidence of that fact and presenting it to the surrogate.
There is no reason, therefore, why the surrogate should have come to any other conclusion than he did in the exercise of his discretion, and the order appealed from must be affirmed, with costs.
. Hatch, J., concurred; Van Beunt, P. J., concurred in result.