In re the Estate of Nay — 19 N.Y. St. Rep. 259

Majority

p. 259

In the Matter of the Estate of Joseph O. Nay, Deceased.

(Surrogate’s Court, New York County,

Filed December, 1887.)

Headnote

Practice — Executors and administrators cannot - use procedure ESTABLISHED BT CODE ClV. PRO., SECTIONS 2706, 2714, TO ENFORCE COLLECTION OF DEBTS.

The procedure established by Code Civ. Pro. secs. 2706, 2714 (which relates to the discovery of property concealed or withheld) was not designed to be used to enforce the collection of debts by an executor or an administrator.

This was a petition for an order requiring respondent to attend and submit to an examination.

This is a discovery proceeding under section 2706 of the Code of Civil Procedure. The petitioner alleges that, upon an examination of the books, memoranda and returned cheeks of the decedent, it has been discovered that one John Dunne, the person herein cited, is in possession of a large sum of money, to wit, $900, belonging to the decedent’s estate. A verified answer has been interposed by Dunne, in which, after denying the allegations of the petition, he insists that he is “the owner of said sum of money, to wit, $900, mentioned in said petition.”

If the petition is to be interpreted as referring to and describing any particular definite parcel of coins, treasury notes, or bank bills, it is the duty of the surrogate, in view of the interposition of the answer, to dismiss the proceeding (Lode Civ. Pro., §2710). A like direction should be given, if the petition is to be interpreted, as simply alleging an indebtedness on Dunne’s part to the decedent’s estate. The procedure established by sections 2706, 2714, was not designed to enforce the collection of debts.

Petition dismissed.