Matter of Benioff

4 Citing cases

  1. Matter of Glasgow

    209 App. Div. 884 (N.Y. App. Div. 1924)   Cited 2 times

    The evidence of the respondent as to personal transactions with her deceased husband in her attempt to establish a gift inter vivos of this specific property, was erroneously admitted; the petitioner had not interrogated the respondent as to personal transactions with decedent, and she was barred from testifying as to such transactions. (Civ. Prac. Act, ยง 347; Matter of Housman, 182 App. Div. 37; Matter of Meehan, 59 id. 156; Matter of Benioff, 73 Misc. Rep. 493; Tilton v. Ormsby, 10 Hun, 7; affd., 70 N.Y. 609.) As to the proceeds of the check for $10,000 cashed by the respondent prior to her husband's death, the decree of the surrogate is affirmed.

  2. Matter of Gray

    7 Misc. 2d 112 (N.Y. Surr. Ct. 1957)

    n the pretrial examination as to alleged gifts, thus having "opened the door", he had a right to fully adduce testimony of his client as to her personal transactions with the deceased in relation to his having made the alleged gifts to her. Counsel's statement of his contention in this connection, as stated in his brief, is: "Respondent's assertion of title by gift at the very outset of the examination by petitioner raised and joined the issue of title at that point and terminated the inquisitorial stage of the discovery proceeding and petitioner's continued examination of the respondent thereafter constituted a waiver of Section 347 of the Civil Practice Act and opened the door to testimony by the respondent." In support of this contention, he cited authorities as follows: Matter of Schulman ( 189 Misc. 672); Matter of Garland (97 N.Y.S.2d 442); Matter of Berardini ( 238 App. Div. 433, affd. 263 N.Y. 627); Matter of Comfort ( 234 App. Div. 19); Matter of Rosen ( 173 Misc. 433), and Matter of Benioff ( 73 Misc. 493). Counsel for the administratrix-petitioner, under section 347 of the Civil Practice Act objected to the competency of the witness on the ground that the inquisitorial phase of this proceeding was not a hearing upon the merits, and, therefore, section 347 permitted him, preliminary, to examine the respondent as to her personal transactions with the deceased.

  3. Matter of Davis

    128 Misc. 622 (N.Y. Surr. Ct. 1927)   Cited 13 times

    In a discovery proceeding, if the petitioner call the respondent as a witness and examine as to transactions with the decedent, the respondent is rendered a competent witness to testify to such personal transactions. ( Matter of Benioff, 73 Misc. 493, citing Carpenter v. Soule, 88 N.Y. 251, 257; Holcomb v. Harris, 166 id. 257.) Such action on the part of the personal representative opens the door so the witness may testify as to matters in reference to which he would otherwise be disqualified under section 347 of the Civil Practice Act.

  4. Matter of Andrew Edward Glasgow

    121 Misc. 613 (N.Y. Misc. 1923)   Cited 3 times

    In every discovery proceeding the petitioner opens the door as to any transaction concerning which he examines the respondent. Nay v. Curley, 113 N.Y. 575; Cole v. Sweet, 187 id. 488; Matter of Benioff, 73 Misc. Rep. 493-495. Decreed accordingly.