Opinion
November 14, 1956
Herman L. Brutten for respondents.
Mortimer J. Levie and Samuel Schacter for petitioner.
This is a motion by the respondents, in a discovery proceeding to vacate an order made on September 24, 1956, which required them to submit to an inquiry under section 205 of the Surrogate's Court Act, claiming the allegations of the petition are insufficient. The movants claim that the petition upon which the order is based is founded upon no proof, that the proceeding is not available for a fishing expedition and that no proof was submitted as to particular property which belongs to the estate.
A proceeding brought under section 205 of the Surrogate's Court Act is in its nature inquisitorial and "a fishing expedition" which may be instituted on information and belief of "any facts tending to show either possession of", or, "knowledge or information" concerning property which should be delivered to the estate representative. This proceeding is considered as "an examination before trial" to elicit information upon which to found a demonstration for ultimate recovery of assets. ( Matter of Kevill, 166 Misc. 230, 233; Matter of Kuster, 152 N.Y.S.2d 742. ) The motion to vacate is denied. Settle order on notice.