111 N.Y.S. 640 | N.Y. Sur. Ct. | 1908
Preliminary objection is made that the application for an advance on account of the petitioner’s distributive share is brought on by notice of motion and not by citation.
This objection was not waived by the adjournment of the motion by consent. All the questions involved upon the motion were adjourned and were, therefore, all preserved.
The Code, in section 2722 et seq., contemplates that the application shall be commenced by petition; that a citation shall issue thereon and that the proceedings shall result in a decree. Section 2722 provides for an answer, for proof and for a decree for the dismissal of the petition in a certain event.
These provisions indicate a special proceeding and are not consistent with a motion in a proceeding already pending. Section 2550. The direction for payment, if contained in a decree,
The motion is denied.
Motion denied.