Opinion
December 20, 1939.
Kaiser Holzman, for Anna U. Silverman, as administratrix, etc., petitioner.
Hertz Wilson, for the respondents.
Under section 316 of the Surrogate's Court Act the provisions of the Civil Practice Act are made applicable to proceedings in Surrogates' Courts in the absence of express or "plainly implied" contrary intent. Nothing within this connotation is to be found in the Surrogate's Court Act respecting replies, wherefore section 274 of the Civil Practice Act is clearly applicable and accords a discretionary right to the court to direct the filing of a reply where an answer contains new matter constituting a defense by way of avoidance. The answer in this proceeding complies with this description, wherefore filing and service of a reply will be directed.
Matter of Hearne (171 N.Y.S. 984) was a probate proceeding and the statement in Matter of Work ( 76 Misc. 403, 404) is a dictum only. These cases are not authorities against the power of the surrogate to direct a reply in a discovery proceeding. Even were the contrary the fact, however, the court would decline to follow them. Matter of Kevill ( 166 Misc. 230) is not in point.
Whereas, therefore, the court will exercise its discretionary authority to direct a reply it deems the simultaneous motion for a bill of particulars premature.
The petitioner will be directed to serve and file a reply within ten days.
Enter order on notice in conformity herewith.