In re the Will of Dunscomb — 32 N.Y. St. Rep. 333

Majority

p. 333

In the Matter of the Will of Eliza Dunscomb, Deceased.

(Supreme Court, General Term, Second Department

Filed May 12, 1890.)

Headnote

Executors and administrators — Proceeding to compel payment or LEGACY.

The administrator of a legatee máde a motion in surrogate’s court for the payment of the legacy, based upon an affidavit which stated the necessary facts and asked that such legacy be paid. Held, that the affidavit was sufficient as a petition to authorize a citation and that the notice of motion did no harm.

Appeal by Alexander T. Cale, as administrator of Eva Gale, deceased, from an order of the surrogate of Kings county, dismissing his motion for the payment of a legacy, with ten dollars costs.

Martin H. Hatpin, for app’lt; Hubbard Hendrickson, for resp’ts.

Alexander T. Gale, as administrator of the estate of Eva Gale, made a motion in the surrogate’s court based upon an affidavit stating that Eliza Dunscomb, by her will, made a bequest of $200 to Eva Gale.

That the Dunscomb will had been proven on the 5th day of February, 1887, and that the estate had the money with which to pay the legacy.

That the executors of the Dunscomb will refused to pay the

p. 334

game on a personal request made to them by the Gale administrator.

There was no opposing affidavit. The court denied the motion upon the ground, apparently, that the application should have-been by petition and citation.

This is the correct method of procedure. Code Civil Procedure, §§ 2717, 271&

. The affidavit which accompanied the notice of motion was sufficient as a petition to authorize a citation. The notice of motion did no harm.

The affidavit after stating the facts asked for such relief as the affiant was entitled to upon the facts stated.

The order should, therefore, be reversed and the proceedings remitted to the surrogate for further action, without costs.on this appeal.

Dykman and Pratt, JJ., concur.