In re the Estate of Godfrey — 280 A.D. 1014

Majority

p. 1014

In the Matter of the Estate of Sylvia K. Godfrey, Deceased. Charles H. Godfrey, as Administrator of the Estate of Sylvia K. Godfrey, Deceased, Respondent; Macy’s Bank et al., Appellants.

Appeal from a decree of the Surrogate’s Court, Sullivan County, which directed appellants to deliver the sum of $728.92 to the administrator of decedent’s estate. The decree was made in a discovery proceeding. We find no authority to sustain the decree either by way of statute or precedent. The relationship of creditor and debtor existed between decedent and appellants. The use of a discovery proceeding may not serve to enforce the payment of a common debt, or to sustain what may amount to a judgment for negligence. We suggest that the Surrogate's Court still has jurisdiction to add as a party the person into whose hands the deposit has gone and follow the proceeds if it is so advised. Decree reversed on the law and facts, without costs, and the matter remitted to the Surrogate’s Court. Foster, P. J., Brewster, Bergan and Coon, JJ., concur; Heffernan, J., taking no part.