Opinion
December 28, 1959
In a proceeding by an alleged creditor for the issuance of letters of administration "so that suit may be commenced", the appeal is from a decree of the Surrogate's Court, Kings County, based on an agreed statement of facts, directing that restricted letters of administration be issued to appellant, the widow of the intestate, pursuant to section 89 of the Surrogate's Court Act. Respondent Mann had sued the intestate to recover damages for personal injuries resulting from an alleged assault which occurred on August 24, 1951. The action was commenced and issue was joined within the two-year period of limitation. (Civ. Prac. Act, § 50.) The trial took place on November 28, 1955. On December 2, 1955 the intestate died while the jury was deliberating. On January 3, 1958 the action was deemed abandoned and the complaint dismissed as provided in rule 302 of the Rules of Civil Practice. On January 30, 1958 respondent Mann commenced this proceeding resulting in the decree appealed from. Decree reversed, with costs, and petition dismissed. In our opinion, respondent Mann has failed to establish her right as a creditor. The cause of action for assault is barred by the Statute of Limitations. (Civ. Prac. Act, § 50.) Moreover, she has not established that the intestate at the time of his death was the owner or possessor of any real or personal property. ( Matter of Bedford, 130 App. Div. 642.) Wenzel, Acting P.J., Beldock, Ughetta and Kleinfeld, JJ., concur.