Opinion
February 4, 1952.
Appeal from Surrogate's Court of Queens County.
Order reversed and matter remitted to the Surrogate for proceedings not inconsistent with the views herein set forth, with $10 costs and disbursements to abide the subsequent proceedings. An allegation in a petition, in a proceeding such as this, that the petitioner is a creditor of the estate, does not in and of itself suffice to establish the petitioner's right to maintain the proceeding as a creditor. The status of a "creditor" is not the same as that of a "person interested in the estate." (Cf. Surrogate's Ct. Act, § 314, subds. 3, 10; see Matter of Leahy, 184 Misc. 250.) The learned Surrogate should have conducted a hearing and determined, upon evidence there adduced, whether the petitioner was a creditor prima facie. ( Matter of Scheftel, 150 Misc. 3; see Matter of Ahrens, 270 App. Div. 103 8.) Nolan, P.J., Carswell, Johnston, Adel and Wenzel, JJ., concur.