| N.Y. App. Div. | Jun 29, 1953
In a proceeding for the probate of a will, contestant appeals from an order granting petitioner’s motion for an examination before trial of contestant. Order modified by striking from the second ordering paragraph thereof items of examination numbered “ I ”, “ IV ” and “ V ”, and by substituting therefor the following item: “ All of the relevant facts and circumstances in connection with the preparation and execution of the instrument propounded for probate in this proceeding ”. The order is further modified by striking from the third ordering paragraph thereof all language following the word “ pertaining ”, and substituting therefor the following: “ to the matters upon which examination is granted by the foregoing provisions of this order and which are in his possession or under his control ”, and by striking out the last ordering paragraph. As so modified, the order is affirmed, without costs. The examination shall proceed within ten days after service of a copy of the order to be entered hereon, with notice of entry. In our opinion items “ I ”, “ IV ” and “ V ” are improper in form, in that they state conclusions rather than subjects of examination, and the third ordering paragraph might have been construed as requiring the production of papers, etc., which would be outside the scope of the examination, or which are not within contestant’s possession or control. Nolan, P. J., Adel, Wenzel, Schmidt and Beldoek, JJ., concur.