In re the Estate of Appel

115 Misc. 118 | N.Y. Sur. Ct. | 1921

Cohalan, S.

This is an application for an order in a discovery proceeding. It plainly appears from the petition that the petitioner is not entitled to the order, because a discovery proceeding in the Surrogate’s Court cannot be used for the purpose of collecting a debt. Where it appears on the face of the petition that delivery cannot be directed, an order to attend an inquiry should not be granted. This precise question was presented and decided in Estate of Denham, N. Y. L. J., June 23,1917, where this court said:

“ The petitioners in the discovery proceeding admit in the brief filed in their behalf that ‘ the object of this inquiry is to obtain information concerning property, (a chose in action) which should be * * * included in the inventory and appraisal.’ It has been repeatedly held and is still the law that a discovery proceeding is designed6 for the purpose of discovering specific property or specific money in coin and bank bills belonging to the deceased and withheld, on which discovery they may be ordered delivered summarily, but the provisions do not contemplate the collection of a debt by summary process.’ (Matter of White, 119 App. Div. 140.) Where it is admitted that the object of the proceeding is to secure information about property which is incapable of. delivery, an examination is unnecessary and the proceeding should end. A discovery proceeding in this court cannot be used for the purpose of ascertaining the discovering evidence to be used in another action or proceeding. Motion to vacate order granted.” Upon appeal this disposition was affirmed. Matter of Denham, 180 App. Div. 935. See, also, Estate of Soule, N. Y. L. J., March 15,1921.

The application must, therefore, be denied.

Application denied.