254 A.D. 705 | N.Y. App. Div. | 1938
Decree of the Surrogate’s Court of Queens county settling account of administrator and dismissing objections to the account, and order denying motion to vacate decree reversed on the law and the facts, without costs, motion to reopen the proceeding granted, without costs, and matter remitted to the Surrogate’s Court for a further hearing and determination. In our opinion, the ruling that appellant was bound by the answers of the administrator was erroneous. He was an adverse party and the appellant was at liberty to endeavor to elicit admissions from him without being bound by his answers. (Koester v. Rochester Candy Works, 194 N. Y. 92, 98.) The birth certificates constituted evidence of the existence of relatives, inclusive of one Nina Zusko, to whom distribution should be made to the exclusion of the administrator. The question of authentication of these birth certificates having been waived, they constituted “ competent evidence of the facts therein stated.” (George v. Galani, 218 App. Div. 840.)
