Appeal from an order of Surrogate's Court, Warren County. It is not now disputed, and the Surrogate has found, that petitioner is the brother of the decedent and that in the proceedings for the probate of her will no citation was served on him and he did not appear. The testatrix' husband, whose application led to the probate of her will, acted in good faith in not citing petitioner because he did not know the fact that petitioner was his wife's brother. The Surrogate has refused to open the probate proceeding because he was of opinion that petitioner must first show some reasonable chance of succeeding in contesting the probate of the will before the decree of probate will be opened. This application is not one to open a default; it is one, rather, to correct a jurisdictional defect. Petitioner is not in default in the probate proceeding; on the contrary, he has never been made a party to that proceeding and the decree probating the will has acquired no binding force or effect on petitioner who is a party so closely related to the testatrix as to require as a matter of law that he be cited on the probate of her will (Surrogate's Ct. Act, § 140). Petitioner must now be placed by the Surrogate in precisely the same position as he would have been in had he been cited and had come into court on the return of citation. That is, he is entitled to make such objection to the probate of the will as he may think proper and offer such proof in support of his contention as he may be advised. It is true there is one case in New York which is authority for a different rule ( Matter of Jones, 147 Misc. 898, affd. without opinion 240 App. Div. 817, appeal dismissed 264 N.Y. 401), but we decline to follow it because to us it seems to overlook a basic jurisdictional implication and because it seems to stand out alone against the main stream of decisional law in New York ( Matter of Roe, 281 N.Y. 541, 547; Matter of Busto, 258 App. Div. 980; Matter of Hone, 250 App. Div. 635, motion for leave to appeal denied 275 N.Y. 651; Matter of Harlow, 73 Hun 433; Matter of Odell, 1 Misc. 390; 11 Carmody-Wait, New York Practice, § 346, p. 276). Moreover, it seems that the authorities upon which the Surrogate in Matter of Jones relied are distinguishable. For example, in Matter of Elias ( 222 App. Div. 728) the court had acquired jurisdiction by publication of the necessary party who had defaulted (Record Briefs, fol. 544 et seq.); in Matter of Jackson ( 134 Misc. 750, affd. 227 App. Div. 777) there was a waiver of citation which the Surrogate held not the result of fraud; and in Matter of Leslie ( 175 App. Div. 108) the omitted party was unable to establish that he had a status which would entitle him to an interest in the estate on intestacy. Order and decree reversed on the law and the facts and a hearing directed on petitioner's application, with costs to petitioner to abide the event. Bergan, P.J., Gibson, Herlihy and Reynolds, JJ., concur.