Miller agt. Kent. be examined as a party before trial, under section 873 of the Code of Civil Procedure. A motion was afterward made at special term, at chambers, to vacate the order of examination, which motion was denied, and from the order entered upon such denial this appeal was taken. The point was made on this appeal that the order to show cause on this motion did not specify the irregularities or grounds upon which it was sought to set aside the original order, and that, for that reason, the order appealed from should be affirmed; but it does not appear that any such objection was made or suggested in the court below, and it does appear that the motion was heard and disposed of upon the merits. Under such circumstances the appellate court should not listen to the objection, because if made below it might readily have been obviated by allowing the statement of such irregularities to be inserted in the notice, and granting a new order to show cause upon the spot. On looking into the merits of the motion upon the papers presented we are satisfied that the plainfiff was entitled to the examination. Issue had been joined and the case was ready for trial as between the parties to the issue. Enough was stated in the affidavit to show the materiality of the examination. Other facts and conclusions were stated, by way of argument, tending to show the materiality of the testimony as a matter of preparation to meet the alleged defenses, but that fact should not, under the circumstances of this case, defeat the examination. The plaintiffs show to our satisfaction that they could not get such an account of the transactions of the defendants, alleged to have been made on their behalf, as they were clearly entitled to. A commission merchant or broker has no right to conceal from his customer any portion of his business and dealings in relation to the property alleged to have been bought and sold; and where he withholds the fullest information on that subject, the right to examination before trial in an action brought to recover alleged profits, or to adjust the unsettled accounts, should be fully accorded. We are not at all satisfied with the good faith of the alleged proffers of Edleson agt. Duryee. the examination of the defendants' books, &c. The disingenuousness of the attempt thus to defeat the examination of defendant as a witness must have struck the court below as it does this court. We think the order should be affirmed, with ten dollars costs and disbursements. Order affirmed. BRADY and BARRETT, JJ., concur. SUPREME COURT. MADDELINE W. EDLESON agt. JOSEPH W. DURyee. Costs not allowed in ex parte order. Costs should not be allowed in an ex parte order directing defendant to file his answer. First Department, General Term, July, 1880. APPEAL from order sustaining allowance of costs in an ex parte order directing the defendant to file his answer within five days, or, in default, that it be deemed abandoned. Carlisle Norwood, for appellant. Ernest T. Fellowes, for respondent. PER CURIAM. The appellant is right in his contention. The order to file the answer was ex parte and costs should not have been allowed (Bowne agt. Armstrong, 13 How., 301). Besides it was a judge's order (See Brevoort agt. Warner, 8 How., 321). A party might as well insert motion costs in an order of arrest or for time to answer. The order should be reversed, with ten dollars costs and disbursements of the appeal. Matter of Rosenthal. N. Y. SURROGATE'S COURT. In the Matter of the Estate of CAROLINE ROSENTHAL. Constitutional law — Surrogates—Chapter 394, Laws of 1870, unconstitutional. Chapter 394 of the Laws of 1870, entitled "An act to confer additional powers upon surrogates and to authorize an examination as to the effects of deceased persons," is unconstitutional, inasmuch as sections 5 and 6 thereof are clearly unconstitutional and the act indivisible. August, 1880. Fraser & Minor, attorneys for estate. Joseph Bellesheim, attorney, and A. C. Anderson, of counsel, for witness. - CALVIN, Surrogate. The administrator of this estate, upon the usual affidavit that Jones Weil has possession of property belonging to the estate of decedent, instituted an inquiry under chapter 394, Laws of 1870, and procured a subpoena requiring said Weil to attend and testify touching the goods, chattels and effects of decedent, which appears to have been duly served upon him. On the return day he appeared by counsel and objected to the further proceeding and moved to dismiss the same on the ground that the law under which the subpoena was issued was unconstitutional, and cited Matter of the Estate of Beebe (vol. 10, No. 7, N. Y. Weekly Dig., 161), in which it is held that the act aforesaid is unconstitutional because it enabled an administrator or executor to obtain possession of property claimed by him, without such trial as is recognized by the Constitution and the ordinary forms of judicial proceedings. A similar statute relating to the powers of the public administrator, and found in 3 Revised Matter of Rosenthal. Statutes (6th ed., section 8, &c.), and which, as early as 1855, came under consideration of the late learned surrogate BRADFORD, of New York, in the Public Administrator agt. Ward (3 Brad., 244), when it was held where deceased had no possession of the property at his death, or twenty days previous, and no advantage had been taken by attendants, but the claim was adverse to him in his lifetime, the statute was not intended to apply; and yet the learned surrogate said, at page 247, “the provision restraining the issue of the warrant, if a bond be given, of course implies that a warrant may issue when there is an adverse claimant." Notwithstanding that opinion of judge BRADFORD, it has been the uniform practice of the present surrogate under that statute, as under chapter 394 and section 7 of chapter 359 of the Laws of 1870, to deny the warrant when on examination there appeared to be an adverse claim to the property; that the act was not a substitute for the action of replevin, and, as thus administered, neither of those acts appear to be, in letter or spirit, a violation of the Constitution. But if judge BRADFORD was right in holding that the act contemplated the issuing of the warrant in the absence of the bond, though there was an adverse claim, the decision In the Matter of Beebe, above cited, would seem to be correct. At first thought it occurred to me that the proceeding was analogous to the provisional remedy of replevin under the Code, but then the property is seized by the sheriff in a suit thereby commenced in which the usual defense may be made, and trial by jury had, after the plaintiff has given security to protect the rights of the defendant, while by the act under consideration, as interpreted by the general term of the third department and by judge BRADFORD, the defendant, in order to secure his defense according to the usual practice and trial by jury, must give security in order to retain the property claimed by him, which he may be unable to do, and in that respect the analogy fails. It is, however, entirely apparent that it would greatly facilitate the administrator or executor of an estate in procuring possession of its effects, to Matter of Brake. provide for such a subpœna and examination, and to put the person in possession to the responsibility, under oath, of stating any claim he may have to it, and if he shall admit possession without right as against the estate, to afford the speedy and inexpensive remedy of a warrant for its seizure and delivery. Out of respect for the authority of the general term the proceedings must be dismissed. Practice-Effect of special term caption on ex parte order. A special term caption does not alter the real character of an ex parte order, or deprive an adverse party of the right to move on notice to vacate or modify it. An order appointing a trustee and directing payment to him of moneys under the provisions of a will, which the court has, by decree, declared to be inoperative, is void; and such trustee being an alien and non-resident, the application for such order was an attempt to evade the provisions of the decrce. First Department, General Term, July, 1880. APPEAL from order vacating an order appointing a trustee and refusing to punish for contempt. John A. Kaufing, for appellant. R. E. Robinson, for respondent. BARRETT, J.-The appellant is entirely incorrect in his contention that it was incompetent for the court below to make the order appealed from. It was not a case of one judge attempting to set aside the order of a brother judge, but of |