In re the Estate of Foote , 146 N.Y.S.2d 714 ( 1955 )

In a proceeding in the Surrogate’s Court, Westchester County, for the issuance of letters of administration to respondent Foote. appellant served an amended answer dated January 14, 1955, containing a cross petition in the nature of a counterclaim, alleging that he is the only person entitled to letters and demanding that the petition be dismissed and that he be appointed. The appeal is from so much of an order as directs him to furnish a bill of particulars with respect to his genealogy and the marriage of his father and mother, with respect to an alleged renunciation claimed to have been executed by respondent Foote, and with respect to a claim that said respondent is incompetent to serve as administrator. Order modified by striking from the first ordering paragraph everything following the words “ bill of particulars is ”, and by substituting therefor the words and figure “ granted, except as to item 4 of said demand; and it is further”; and by striking from the second ordering paragraph everything following the words “ with respect to ” and by substituting therefor the words and figure “A true copy of the agreement in writing referred to in paragraph ‘ 4 ’ of respondent’s amended answer.” As so modified, order affirmed, without costs, and without prejudice to a new application for a further bill of particulars, and with leave to serve a reply to the amended answer of January 14, 1955, within ten days from the entry of the order hereon. It does not appear from the record before us that respondents have controverted or denied the allegations contained in appellant’s amended answer of January 14, 1955, since the same was filed. Under the circumstances, it is our opinion that respondents, if they desire to deny the truth of those allegations, should do so by a verified reply before appellant is required to particularize with respect to his genealogical claims and the marriage of his parents. (Matter of Pye, 276 App. Div. 967; Matter of Unger, 172 Misc. 952, affd. 259 App. Div. 823; Matter of Aspenleiter, 187 Misc. 167.) Wenzel, Acting P. J., MacCrate, Schmidt, Beldock and Ughetta, JJ., concur.