In my opinion the order appealed from should be affirmed. Section 2818 of the Code of Civil Procedure expressly leaves it within the discretion of the Surrogate’s Court to determine whether or hot the appointment of a successor to a deceased trustee. would be for the benefit of the cestui que trust. That court has exercised this discretion and appointed a substituted trustee. In my opinion we have no authority to overrule it unless it can fairly be said that there has been an abuse of discretion or a violation of justice. This, as I understand it, is- the rule heretofore established by this court and the Court of Appeals. It was directly so held in Matter of Adler (60 Hun, 483), wherein the court said’: “ The appellant contends that the rules which govern on appeals from discretionary orders of the Special Term of our own courts are equally applicable to appeals from similar-orders of the Surrogate’s Court. This, however, is not the case. It is true that on appeals from the Special to the General Term of our oWn court we are bound to review upon the merits all orders *645resting in discretion. (Hanover Fire Insurance Company v. Tomlinson, 58 N. Y. 216; Jemison v. Citizens' Savings Bank, 85 id. 546.) That discretion, however, is the discretion of the Supreme Court, whether exercised in one of its branches or in another. It is the same court and the same discretion throughout. But this rule is not applicable to appeals from another and a distinct tribunal such as the Surrogate’s Court. There our appellate authority is confined to errors of law or to matters of substantial right which are not dependent upon the discretion of such other court. (Matter of Selleck, 111 N. Y. 289.) Where, as here, the Surrogate is expressly clothed with discretion, the utmost that can be claimed is that we may review his action so far as to ascertain whether ‘there has been an abuse of discretion and a violation of justice' (see opinion, Gray, J., p. 290.) This cannot possibly be claimed in the present case.” In Matter of Selleck (111 N. Y. 290) the Court of Appeals said on the same subject: “* * * . I think the Legislature sliduld not be deemed to have intended that there should be no redress in cases of an abuse of discretion by the surrogate, and that that view finds support in the words quoted. But where the appellate court undertakes to act in review of that discretion, and to reverse it's exercise by the other court, it should and it must appear in the order or judgment that the ground of reversal was the abuse of discretion by the surrogate * * * and the General Term, except on the ground stated, is without power to interfere.” The same rule was. reiterated in Matter of Hyde (47 N. Y. St. Repr. 208) and Matter of Eisner (6 App. Div. 565).
It seems to me to be impossible to say that the surrogate abused his discretion in the present case. There is no doubt that the appellant, Frederick Dietz, has managed the business of the R. E. Dietz Company with great success, and his management is not called in question here. It is true, however, that for some reason his relations with his mother, the eestui que trusty have become unfriendly, and it is not denied that for some time the relations between himself and the sole surviving trustee have been such that the latter has been practically excluded from all participation in the administration of the trust. Under such circumstances, it cannot be said to haves' been an abuse of discretion to appoint a third trustee in' the place of the one who had died, and the selection made *646by the surrogate' is such as to prevent any apprehension of unreasonable interference with the business of the Dietz Company. The order should be affirmed, with costs.
Laughlin, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.