148 Misc. 269 | N.Y. Sur. Ct. | 1933
This is a proceeding for the discovery of property under sections 205 and 206 of the Surrogate’s Court Act. On the 15th day of May, 1933, Maude A. Arthur, administratrix of the goods, chattels and credits of John E. Arthur, deceased, presented a duly verified petition to this court alleging that certain personal property of the said John E. Arthur, deceased, consisting of an automobile which was included in the inventory and appraisal of the estate of John E. Arthur, was at that time in the possession of and under the control of one J. M. Lewis, and that J. M. Lewis was withholding the possession of said property from petitioner. On the same day of the filing of said petition an order was made by this court directing that an inquiry be held at a term of this court on the 29th day of May, 1933; that J. M. Lewis attend such inquiry and be examined and show cause why he should not deliver the property described in the petition to the administratrix. The said order also provided that service of a certified copy of the order and petition be made on J. M. Lewis on or before the 24th day of May, 1933. On the 29th day of May, 1933, the administratrix and her counsel appeared in this court and the said J. M. Lewis and his counsel also appeared, at which time the administratrix asked permission to amend the petition by inserting an allegation that J. M. Lewis also was withholding from her “ other personal property.” The court thereupon asked the respondent if he desired to file an answer to the petition and his counsel stated that he had not filed and did not desire to file a written answer. Respondent was then sworn to answer all questions put to him touching the inquiry prayed for in the petition. From the testimony of respondent it appears that about seven weeks before his death John F. Arthur went to the home of Julius M. Lewis at Pine City, N. Y., to board, Julius M. Lewis being merely a casual- acquaintance' whom Mr. Arthur had met during the summer; that about ten days before his death John F. Arthur purchased a Chevrolet automobile and paid therefor the sum of $741; that he took the title thereto in his own name and caused the same to be registered in his own name, and from the time of the purchase to the present time no transfer or attempt to transfer the said automobile to any other person has been made. The respondent stated that the administratrix had demanded possession of said automobile but that he had refused to deliver it to her and that he still had possession of the same.
The questions to be decided here become somewhat involved by reason of the failure of the respondent to submit an answer as provided in section 206 of the Surrogate’s Court Act. Although the respondent was permitted to offer testimony concerning the title to the property in question, without objection on the part of the petitioner, that is not sufficient answer to comply with section 206 of the Surrogate’s Court Act for it is provided in section 49 of the act that all pleadings must now be in writing and duly verified. This proceeding must, therefore, be determined on the theory that no answer has been submitted by the respondent. Where no answer
In a discovery proceeding the burden of proving the gift is upon the respondent. (Matter of Housman, 224 N. Y. 525.) And proof of the gift must be clear, convincing and satisfactory. (Matter of Van Alstyne, 207 N. Y. 298.) I am convinced that if the respondent had interposed an answer claiming title to the automobile in question he could not have met these requirements.
It was not established that the respondent has in his possession any property belonging to the decedent’s estate except the automobile purchased by the decedent on the 17th day of January, 1933, and it will, therefore, be unnecessary to consider the questions raised by the application of the administratrix to amend the petition. I am convinced, however, that tMs is exactly such a situation as the statute mtended to give summary power to the surrogate to remedy. I find that John F. Arthur at the time of Ms death was the owner of the Chevrolet automobile purchased by him on the 17th day of January, 1933, and that that automobile is now m the mere naked possession of Julius M. Lewis. I find further that the admmistratrix of the estate of John F. Arthur is entitled to possession of that automobile, and an order may be prepared directing Julius M. Lewis to deliver said automobile to the admmistratrix of tMs estate. Settle decree accordmgly.