27 Misc. 2d 770 | N.Y. Sur. Ct. | 1960
In this discovery proceeding the respondent has moved for an order vacating the petitioner’s demand for a hill of particulars or, in the alternative, modifying such demand. The movant contends that the demand is improper because the executor has the burden of proof in respect of matters referred to in the demand and because the demand calls for evidentiary facts.
The petition in this proceeding alleges that the moneys which are the subject of the proceeding were transferred from a savings bank account of the decedent to bank accounts in the name of the respondent. The answer of the savings bank supports this allegation. The individual respondent has interposed an answer asserting a claim of title to the moneys sought to be recovered by the executor but the respondent does not allege how such title was acquired. It would appear upon the present state of the pleadings that the respondent’s claim of title imposes the burden of proof upon her. “ [I] £ the respondent enters an answer which concedes that title to the property was at one time in the decedent, but that such title devolved upon the respondent by gift or otherwise, the burden of proof is on the respondent to establish the gift or other facts which resulted in a transfer of title from the decedent to the respondent (Matter of Van Alstyne, 207 N. Y. 298; Rosseau v. Rouss, 180 N. Y. 116; Matter of Schroeder, 113 App. Div. 204, affd. 186 N. Y. 537) ” (Matter of Rabinowitz, 5 Misc 2d 803, 804).
This court believes that, were it necessary on this motion, the bill of particulars should be granted irrespective of the burden
The contention that the demand calls for an improper disclosure of evidentiary facts is without merit. The items demanded are those necessary to amplify the respondent’s pleading and to prevent surprise at the trial (Matter of Kadar, 3 Misc 2d 471; Matter of Britton, 167 Misc. 747). The motion is denied.