In re the Probate of the Will of Anderson

285 A.D. 971 | N.Y. App. Div. | 1955

In a contested probate proceeding, the appeal is from an order of the Surrogate’s Court, Suffolk County, granting respondent’s cross motion for an examination before trial of the subscribing witnesses as such, of appellant as an adverse party and of a prospective witness, and providing for other relief. The only questions presented on this appeal relate to certain of the items allowed with respect to the examination before trial. Order modified by striking therefrom the last ordering paragraph and by deleting from the next to the last ordering paragraph items designated (e), (h) and (i) and by inserting in item designated (k) at the end thereof the words “ during her lifetime ” and, as so modified, affirmed, without costs. Assuming that in a proper case an examination as to transactions occurring after the death of the decedent might be permissible, the facts set forth in respondent’s motion papers are totally insufficient to justify a finding that evidence of such transactions is material and necessary to respondent’s case. MacCrate, Acting P. J., Schmidt, Beldock, Murphy and Ughetta, JJ., concur.