Opinion
January 29, 1926.
Brennan, Flamman Simpson, for the petitioner.
George M. Curtis, Jr., for the respondent.
This is a proceeding brought by the executor to discover property alleged to be withheld by the respondent. The order for discovery requires the respondent to attend and be examined with respect to forty-nine shares of stock of Ferdinand Ehrlich, Inc., to which the respondent claims title. The shares of stock are admittedly in the possession of the executor, the petitioner herein. The proceeding should be dismissed for the following reasons: (1) The purpose of a discovery proceeding is to obtain the possession of property, which should be delivered or paid to the representative of an estate, in the possession, under the control or within the knowledge or information of a person who withholds the same; (2) the courts will not determine the question of title in a discovery proceeding, where the property is not in the possession of the person sought to be examined, but is in the possession of the petitioner, as here; and (3) the papers on this application further disclose that the apparent purpose of this proceeding is to secure the testimony of the respondent, so that it may be used in a pending action in the Supreme Court, Kings county, wherein it is alleged all questions with respect to the ownership of the stock will be tried out. Any one of these reasons is a sufficient ground for the dismissal of this application. Proceeding dismissed.