| N.Y. App. Div. | Feb 16, 1953
In a proceeding to compel respondent to render and settle her account as administratrix, order of the Surrogate’s Court, Queens County, granting respondent’s motion pursuant to rule 112 of the Rules of Civil Practice, and dismissing appellant’s petition on the merits reversed on the law, with $10 costs and disbursements, payable out of the estate, and motion denied, without costs. As a matter of pleading, appellant’s petition is sufficient to sustain her demand for an accounting. Defenses alleged in the answer may not be considered in the determination of the motion since the allegations of such defenses are deemed controverted. (Civ. Prae. Act, § 243.) Issues of fact are presented which require the denial of relief pursuant to rule 112. Nolan, P. J., Adel and Beldoek, JJ., concur; Wenzel and Schmidt, JJ., dissent and vote to affirm, with the following memorandum: The petitioner herein was, on the face of her petition, not entitled to the relief she sought. She should have instituted a plenary proceeding to set aside the release and concessions signed by her and others, and to be relieved of her waiver and consent. Not until these matters were disposed of could she possibly be entitled to an accounting.