Matter of Kevill

16 Citing cases

  1. Matter of Lukas

    79 Misc. 2d 24 (N.Y. Surr. Ct. 1974)   Cited 4 times

    It is well known that in its inception a discovery proceeding is essentially inquisitorial and remains so until the petitioner has established a prima facie case for recovery of the property sought ( Matter of Kevill, 166 Misc. 230; 3 Warren's Heaton, Surrogates' Courts, § 235). From that point forward, it becomes in the nature of an action for replevin.

  2. Matter of Grotsky

    12 Misc. 2d 385 (N.Y. Surr. Ct. 1958)   Cited 2 times

    Bills of particulars are regularly required in a discovery proceeding ( Matter of Leary, 175 Misc. 253). Although no particulars may be demanded during the inquisitorial stage, where there is an affirmative answer (as here) alleging a gift from the decedent, the burden is on the party asserting that fact, and he will be required to furnish a bill of particulars ( Matter of Kuster, 12 Misc.2d 239; Matter of Kevill, 166 Misc. 230). Item 1(c) of the demand seeks to determine whether such alleged gift was made orally or by a written instrument.

  3. Matter of Theirich

    11 Misc. 2d 39 (N.Y. Surr. Ct. 1957)

    " (Dodge and Sullivan on Estate Administration and Accounting, pp. 339-340.) (See, also, 3 Warren's Heaton on Surrogates' Courts, §§ 235.1. [f], 235.2., 235.3. [c]; 4 Jessup Redfield on Surrogates Law and Practice, § 3060; Matter of Liebl, 201 Misc. 1092, 1095; Matter of Cohen, 206 Misc. 313, 314; Matter of Kevill, 166 Misc. 230, 233.) The language of the statute makes it difficult to determine the quantum of evidentiary matter required to be found in the petition.

  4. Matter of Rosenkrantz

    5 Misc. 2d 308 (N.Y. Surr. Ct. 1956)   Cited 4 times

    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.

  5. Matter of Kuster

    12 Misc. 2d 239 (N.Y. Surr. Ct. 1956)   Cited 9 times

    Only such particularity of allegation may be required from the petitioner as is expressly specified in the statute, and the grant of the order of examination is, in and of itself, an expression of judicial opinion that the required demonstration has been made with sufficient particularity." ( Matter of Kevill, 166 Misc. 230, 233.) "The furnishing of particulars by petitioner is resisted on the ground that this is a proceeding in discovery in which petitioner asserts no bill of particulars may be ordered.

  6. Matter of Cohen

    1 Misc. 2d 626 (N.Y. Misc. 1956)   Cited 1 times

    After death an autopsy was performed. The subject matter of an inquiry in a discovery proceeding is "money or other personal property, or the proceeds or value thereof" and the object is to establish a prima facie case for the recovery of some one or more identified items of property ( Matter of Kevill, 166 Misc. 230) which are capable of delivery ( Matter of Denham, 182 N.Y.S. 90, affd. 180 App. Div. 935). The object of the inquiry in the Denham case was to obtain information concerning a chose in action. The court said: "Where it is admitted that the object of the proceeding is to secure information about property which is incapable of delivery, an examination is unnecessary, and the proceeding should end.

  7. Matter of Millard

    208 Misc. 959 (N.Y. Surr. Ct. 1955)   Cited 1 times

    There is certainly no reason why the executor should not have the right to examine, to enable him to make a proper appraisal or inventory and to take the proper proceedings to ultimately secure the property for the benefit of those interested in the estate. ( Matter of O'Brien v. Baker, 65 A.D. 282.) "the initial purpose of the examination in discovery is to elicit information upon which to found a demonstration for ultimate recovery of assets" ( Matter of Kevill, 166 Misc. 230, 233). It is obvious from a reading of section 205 that it is not necessary to show that the respondent has actual possession of the property or the proceeds.

  8. Matter of Cohen

    206 Misc. 313 (N.Y. Surr. Ct. 1954)

    Accepting these allegations as true, as the court must on a motion to dismiss for insufficiency (Matter of Schapiro, 95 N. Y. S. 2d 430), the petition sets forth prima facie sufficient facts to entitle the petitioner to the examination under section 205 of the Surrogate's Court Act. (Matter of Stern, 306 N.Y. 862; Matter of Wilson, 252 N.Y. 155; Matter of Trevor, 282 App. Div. 451; Matter of Nutrizio, 211 App. Div. 8; Matter of Halprin, 199 Misc. 866; Matter of Kirchenbaum, 195 Misc. 636; Matter of Schulman, 189 Misc. 672; Matter of Hilliard, 172 Misc. 273; Matter of Kevill, 166 Misc. 230; Matter of Brown, 141 Misc. 805; Matter of Katz, 63 N. Y. S. 2d 298.) Motion denied.

  9. Matter of Cohen

    206 Misc. 313 (N.Y. Misc. 1954)

    Accepting these allegations as true, as the court must on a motion to dismiss for insufficiency ( Matter of Schapiro, 95 N.Y.S.2d 430), the petition sets forth prima facie sufficient facts to entitle the petitioner to the examination under section 205 of the Surrogate's Court Act. ( Matter of Stern, 306 N.Y. 862; Matter of Wilson, 252 N.Y. 155; Matter of Trevor, 282 A.D. 451; Matter of Nutrizio, 211 A.D. 8; Matter of Halprin, 199 Misc. 866; Matter of Kirchenbaum, 195 Misc. 636; Matter of Schulman, 189 Misc. 672; Matter of Hilliard, 172 Misc. 273; Matter of Kevill, 166 Misc. 230; Matter of Brown, 141 Misc. 805; Matter of Katz, 63 N.Y.S.2d 298.) Motion denied.

  10. Matter of Buchalter

    203 Misc. 1074 (N.Y. Surr. Ct. 1953)

    The statute (Surrogate's Ct. Act, § 206) is silent as to the form of the answer to be filed in a discovery proceeding. However, since such a proceeding is in the nature of an action in replevin (Matter of Kevill, 166 Misc. 230), the answer would seem to be in proper form and sufficient in substance if it conforms to the requirements of a pleading in such an action. Tested by these standards, the answer interposed herein is legally sufficient (Rules of Civil Practice, rule 270; cf. Griswold v. Manning, 67 App. Div. 372). By its interposition, this proceeding has ceased to be an inquiry, and a litigated issue which may be tried by the court under section 206 of the Surrogate's Court Act has been properly presented (Matter of Gergely, 193 Misc. 51). This assertion of title under the statute (Surrogate's Ct. Act, § 206) is in the nature of a general denial.