254 A.D. 571 | N.Y. App. Div. | 1938
Decree of the Surrogate’s Court of Kings county, in so far as appealed from, granting letters testamentary to respondent Herman Cohen, and presently denying the application for letters testamentary of appellant Isidore Cohen, affirmed, without costs. We feel constrained to follow the precedents which hold that a person convicted in another jurisdiction of a crime which is there a felony, is not guilty of “ felony ” as that term is defined in section 2 of the Penal Law (Sims v. Sims, 75 N. Y. 466; National Trust Co. v. Gleason, 77 id. 400; People v. Gutter son, 244 id. 243) and that consequently such person is not a “ felon ” within the meaning of section 94, subdivision 4, of the Surrogate’s Court Act. (O’Brien v. Neubert [Matter of O’Brien], 3 Dem. 156; 67 How. Pr. 503; Matter of Canter, 146 Mise. 123.) Nor is the respondent Herman Cohen disqualified by reason of “ dishonesty ” within section 94, subdivision 5. The dishonesty apparently contemplated by the statute, under the cases, is dishonesty in money matters. (Matter of Flood, 236 N. Y. 408,411; Matter of Latham, 145 App. Div. 849, 854.) The record does not indicate that the crime of which he was convicted was of that character. Carswell, Adel, Taylor and Clofee, JJ., concur; Lazansky, P- J-, dissents from that part of the decision which affirms the granting of letters testamentary to Herman (referred to in the decree as Hyman) Cohen, but concurs in the decision in all other respects. [164 Mise. 98.]