57 A.D.2d 558 | N.Y. App. Div. | 1977
In a proceeding to settle the account of the petitioner executor, the objectant appeals, as limited by her brief, from so much of a decree of the Surrogate’s Court, Westchester County, dated November 6, 1975, as dismissed those of her objections which relate to the rental of certain property, the obligations of a tenant under a certain lease and a loan to the decedent. Decree affirmed insofar as appealed from, with costs payable personally by appellant. Under the circumstances the new lease to Tibbets Contracting Co. was not improper and the executor’s failure to insist that the tenant, Steel Slides Co., make further repairs is not a matter for which the executor should be surcharged. There was sufficient proof of a $2,000 loan by the executor to the decedent to support the determination of the loan’s validity by the Surrogate’s Court. The reading into the record, by the objectant, of the pretrial deposition of the executor, wherein the latter had given testimony as to the circumstances of his loan to the decedent, constituted a waiver of CPLR 4519, which permitted the executor to testify at the trial as to the said loan (see Matter of Nettle, 91 NYS2d 255, 261-262, affd 276 App Div 929). Margett, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.
