Opinion
February 26, 1962
In an action to recover money, certificates of stock of the American Telephone and Telegraph Company and other personal property belonging to the testator's estate, the defendants appeal from an order of the Supreme Court, Westchester County, dated August 21, 1961, which: (a) granted plaintiff's motion as executor under testator's will: (1) to be substituted as plaintiff in place of the testator who died after the commencement of the action, and to amend the title of the action accordingly; (2) to examine defendants for the purpose of enabling the substituted plaintiff to frame a complaint; and (3) to enjoin defendants and said company from making or attempting to make any disposition of any share of stock registered in the joint names of the testator and defendant Florence Hoffecker (also known as Florence Bailey); and which (b) denied defendants' cross motion to dismiss the action for failure to serve a complaint and for lack of prosecution. Order affirmed, with $10 costs and disbursements. No opinion. The examination of the defendants shall proceed on 10 days' written notice by the plaintiff, or on any other date mutually fixed by the parties. Plaintiff's time to serve the complaint is extended until 30 days after he shall have concluded such examination and the defendants shall have delivered to him their respective depositions duly signed and executed. Beldock, P.J., Ughetta, Kleinfeld, Christ and Hopkins, JJ., concur.