Opinion
June 24, 1940.
In a discovery proceeding the Surrogate's Court has held that the respondent, as executor of the last will and testament of Mary Tuite, has a lien on a certain bank book in the sum of $500. From this determination the petitioner in the Surrogate's Court appeals. Decree of the Surrogate's Court, Queens County, reversed on the law and the matter remitted to the Surrogate's Court for a new hearing, with costs to appellant to abide the event. The testimony of the witness Magan as to the declarations made by Mary Tuite, giving her version of the transaction, was incompetent and hearsay. ( Matter of Berardini, 238 App. Div. 433; affd., without opinion, 263 N.Y. 627.) Having once objected to the receipt of the testimony and having taken an exception to the overruling of the objection, it was unnecessary for the appellant's attorney to repeat his objections to subsequent questions calling for the same class of evidence and relating to the same subject-matter. ( Church v. Howard, 79 N.Y. 415; Sherman v. D., L. W.R.R. Co., 106 id. 542, at p. 547.) Lazansky, P.J., Hagarty, Carswell, Adel and Close, JJ., concur.