(dissenting). The precise question here presented was expressly reserved for future consideration by the Court of *524Appeals in Matter of Kane. (246 N. Y. 498, 505). It is to be observed that the notice of appeal itself was timely. - The amendment merely extended the scope of the appeal. It is true that only such grounds as are enumerated in the notice may be considered. (Matter of Manning, 169 N. Y. 449; Matter of Davis, 149 id. 539; Matter of Fletcher, 219 App. Div. 5.) But the situation presented may be deemed analogous to the power of the court to enlarge the scope of a bill of particulars hmiting a complaint. The decision in Matter of Kane (supra) turns almost entirely upon the question of estoppel. This ground, however, would scarcely have been a sufficient basis for the decision had the objection been jurisdictional. Such question may be raised at any stage of the proceeding.
For the foregoing reasons the order should be affirmed.
Finch, J., concurs.
Order reversed, with ten dollars costs and disbursements to the appellant, and motion denied, with ten dollars costs, and proceeding remitted to the Surrogate's Court for further action in accordance with opinion. ■ •