Opinion
December 28, 1962
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
This is an appeal from an order of the Surrogate's Court, Sullivan County, which granted ancillary letters upon an approved bond of $5,000. The appellant argues that the Surrogate exceeded his discretion in not requiring more than $5,000 as requested in his affidavit answering the petition of respondents for ancillary letters. The petitioners in their petition admit assets in New York State, Sullivan County, of about $106,000, of which $75,000 was real property within the county. Appellant has claimed damages by decedent to him in the sum of $50,000 as the result of an alleged conspiracy entered into between decedent and Brookwood Camp, Inc., to discharge sewage in the waters of Loch Ada and breach of covenant against incumbrances by decedent. He further seeks treble damages pursuant to section 1433 of the Penal Law. So far as appears it is undisputed that appellant is indebted to decedent's estate in the sum of $20,675. The Surrogate concluded that the disputed claim could not be ignored. ( Matter of Musgrave, 5 Dem. 427, 428.) Appellant, however, has not set forth sufficient facts in his affidavit to show an enforcible claim in the amount alleged. The amount required by the Surrogate when added to the mortgage indebtedness is about $25,675 and this court cannot say that such is an abuse of discretion on the part of the Surrogate under section 163 of the Surrogate's Court Act. Order unanimously affirmed, with $10 costs.