Opinion
March 11, 1952.
Present — Peck, P.J., Cohn, Callahan, Van Voorhis and Bergan, JJ.;
The order appealed from calls for the examination before trial of an executrix and for the production of books and documents relating to matters antedating the death of decedent and the appointment of the executrix. Although by the order the examination is limited to appellant's knowledge as executrix, she appeals upon the ground that plaintiff is not entitled to examine her as an adverse party with respect to matters which occurred prior to her appointment. It is apparent that what is sought by the examination is such knowledge concerning the matters covered by the examination as the executrix in her representative capacity may have gleaned from the decedent's books and records. We construe the order appealed from as directing the production of books and records relevant to the subjects of inquiry and the incidental examination of the executrix for the purpose of disclosing what the books may show. As such, the order is proper and is affirmed, with $20 costs and disbursements to the respondent. The date for the examination to proceed shall be fixed in the order.
Plaintiff is not entitled to an examination before trial of Gertrude S. Freitag, as executrix, as a party because all items upon which the examination is sought involve transactions which occurred prior to her appointment as executrix ( Pardee v. Mutual Benefit Life Ins. Co., 238 App. Div. 294, 297). In my view it would be improper to examine the executrix in her representative capacity, and require her to give testimony concerning matters over which she cannot possibly have any personal knowledge. In her representative capacity as executrix she could not make any admissions binding the estate of David Schnur as to matters which occurred prior to decedent's death and prior to the time of her appointment as executrix. As to that portion of the order which directed the production of books and documents pursuant to section 296 of the Civil Practice Act, their production is limited to use only in connection with the examination of a party. As she may not be examined as a party in her representative capacity, it would be equally improper to require the production of any books and records of the estate. The production of any books and records is limited by statute to such as may be relevant to the matters upon which an examination is allowed ( Thurswel v. Goodyear Tire Rubber Co., 271 App. Div. 919).