In re the Estate of Ehrlich — 126 Misc. 673

Majority

p. 673

In the Matter of the Estate of Jeannette Ehrlich, Deceased.

Surrogate’s Court, New York County,

January 29, 1926.

Headnote

Executors and administrators — proceeding by executor to discover shares of corporate stock — stock now in possession of executor — proceeding dismissed where purpose is to obtain testimony for use in action to determine title bo stock.

An application by the executor of decedent’s estate to discover forty-nine shares of stock of a corporation alleged to be withheld by the respondent should be denied, where it appears that said stock is admittedly in the possession of the executor and that the apparent purpose of the proceeding herein is to obtain from the respondent testimony for use in an action in the Supreme Court to determine the ownership of the stock.

Proceeding by executor to discover property.

Brennan, Flamman & Simpson, for the petitioner.

George M. Curtis, Jr., for the respondent.

This is a proceeding brought by the executor to discover property alleged to be withheld by the respondent. The order for discovery requires the respondent to attend and be examined with respect to forty-nine shares of stock of Ferdinand Ehrlich, Inc., to which the respondent claims title. The shares of stock are admittedly in the possession of the executor, the petitioner herein. The proceeding should be dismissed for the following reasons: (1) The purpose of a discovery proceeding is to obtain the possession of property, which should be delivered or paid to the representative of an estate, in the possession, under the control or within the knowledge or information of a person who withholds the same; (2) the courts will not determine the question of title in a discovery proceeding, where the property is not in the possession of the person sought to be examined, but is in the possession of the petitioner, as here; and (3) the papers on this application further disclose that the apparent purpose of this proceeding is to secure the testimony of the respondent, so that it may be used in a pending action in the Supreme Court, Kings county, wherein it is alleged all questions with respect to the-ownership of the stock will be tried out. Any one of these reasons is a sufficient ground for the dismissal of this application. Proceeding dismissed.