In re Gall's Estate — 63 N.Y.S. 157

Majority

p. 157

(49 App. Div. 3.)

In re GALL’S ESTATE.

(Supreme Court, Appellate Division, Second Department.

March 13, 1900.)

Headnote

Pleading — Motion to Strike — Affidavits—Time.

After a party has acquiesced in the use of affidavits in proceedings in the surrogate’s court, and they have been considered by the court as a part of the record, and used for all the purposes for which they were made,

p. 158

and no further use of them is contemplated, it is too late to move to strike them from the record, for the reason that they divulge a privileged communication.

Appeal from special term.

Action by Charles F. Gall against the estate of Joseph Gall, deceased. From an order denying a motion to strike,, certain affidavits from the files, plaintiff appeals.

Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, HATCH, WOODWARD, and HIRSCHBERG, JJ.

Ira Leo Bamberger (Fernando Solinger, on the brief), for appellant.

Alfred E. Mudge, for respondent the American Surety Company.

We agree with the learned surrogate that whatever right the petitioner had to have the affidavits mentioned in the motion disregarded and stricken from the record his motion came too late, and for that reason should be denied. One of the affidavits was sworn to October 1, 1898, and the other November 1st of the same year. They were both read upon the proceeding in the surrogate’s court, and were made a part of the record on appeal from such determination. The only objection which was raised thereto by the petitioner was that the matter in the affidavits could not be considered, for the reason that it divulged a privileged communication, and this objection has been considered in dealing with them. Having thus acquiesced in the use of these affidavits, and they having been considered by the court as a part of the record in the proceeding, and having been used for all of the purposes for which they were made, and no further use of them being contemplated, we think there is no way in which the petitioner can be prejudiced by them, and that there has been such loches in making the motion that it ought not now to be granted.

The order should therefore be affirmed, with $10 costs and disbursements.