Opinion
March 26, 1962
In a proceeding to probate a will, the petitioner appeals from the following two orders of the Surrogate's Court, Queens County, dated February 1, 1961: (1) an order which denied her motion, pursuant to rule 104 of the Rules of Civil Practice, to strike out as sham and frivolous the answer of respondent, the Public Administrator of Queens County, or, in the alternative, pursuant to rule 113 of the Rules of Civil Practice, for summary judgment in favor of petitioner; and for leave to reconsider and renew her prior motion to strike out the appearance and authorization of the Public Administrator upon the ground that he has no interest and standing herein; and (2) an order which granted the Public Administrator's motion to direct the petitioner to serve a supplemental citation upon nine named persons who are alleged to be distributees. Order denying petitioner's motion reversed, without costs; petitioner's motion to strike out the Public Administrator's answer granted; petitioner's motion for leave to renew her prior motion to strike out the Public Administrator's appearance and authorization granted; and such renewed motion is granted and such appearance and authorization by the Public Administrator are vacated and directed to be struck out. There is no justification for the intervention of the Administrator in this proceeding (cf. Matter of Schindhelm, 11 A.D.2d 777). If we did not strike out the answer, we would have granted the petitioner's motion for summary judgment in any event. Order granting the Public Administrator's motion to direct service of supplemental citation upon nine named persons, affirmed, without costs. It was within the jurisdiction and discretion of the court to make the said order, irrespective of the manner in which the failure to include the names had come to its attention, and without regard to the Public Administrator's lack of standing as an interested party or as the representative of one. Petitioner's time to obtain and serve the supplemental citation is extended until 40 days after entry of the order hereon. Beldock, P.J., Ughetta, Kleinfeld, Christ and Hopkins, JJ., concur.