Opinion
06-11-1954
In the Matter of The Estate of Philip Cohen, Deceased.
Pollister Hamilton Feely for Lafayette National Bank of Brooklyn in New York, as administrator of the estate of Philip Cohen, deceased, petitioner. Moses Polakoff and Milton C. Polakoff for Sol Roder and others, respondents. RUBENSTEIN, S. This is a motion, in a discovery proceeding commenced by the administrator herein, to vacate an order dated February 23, 1954, for the examination of ten individuals including the two who appear specially herein for the purposes of this motion. The objections go to the substance and sufficiency of the petition and challenge the court's jurisdiction only of the subject matter thereof. Consequently, the movants must be deemed to have appeared generally herein as respondents (Civ. Prac. Act, § 237-a; Matter of Feinberg, 185 Misc. 862: Matter of Lacombe, 113 N. Y. S. 2d 509; Matter of Smith, 113 N. Y. S. 2d 157). The factual background is dealt with briefly by the court in another discovery proceeding, also brought by the petitioner, as administrator herein, decided simultaneously herewith (Matter of Cohen, 206 Misc. 271). That proceeding is directed against decedent's father and brother and concerns mainly a fund of $17,000 received by decedent's father from certain business associates of decedent, after his death, and admittedly an asset of his estate. It is herein alleged, inter alia, that the respondents were friends and business associates of decedent and may have possession of or knowledge and information concerning property which should be delivered or paid to petitioner. Accepting these allegations as true, as the court must on a motion to dismiss for insufficiency (Matter of Schapiro, 95 N. Y. S. 2d 430), the petition sets forth prima facie sufficient facts to entitle the petitioner to the examination under section 205 of the Surrogate's Court Act. (Matter of Stern, 306 N.Y. 862; Matter of Wilson, 252 N.Y. 155; Matter of Trevor, 282 App. Div. 451; Matter of Nutrizio, 211 App. Div. 8; Matter of Halprin, 199 Misc. 866; Matter of Kirchenbaum, 195 Misc. 636; Matter of Schulman, 189 Misc. 672; Matter of Hilliard, 172 Misc. 273; Matter of Kevill, 166 Misc. 230; Matter of Brown, 141 Misc. 805; Matter of Katz, 63 N. Y. S. 2d 298.) Motion denied. Submit order on notice.