In re Neidhart , 291 N.Y.S. 596 ( 1936 )

Order of the Surrogate’s Court of Queens county dismissing a discovery proceeding under section 205 of the Surrogate’s Court Act, reversed on the law, with costs to appellant, payable out of the estate, and the matter remitted to the surrogate for hearing. Assuming, without deciding, that the petitioner did not make out a prima facie right to the proceeds of the two policies of insurance when it was established that the policies were in good standing at the date of decedent’s death, he nevertheless should have been permitted to adduce the facts upon which the respondent obtained the proceeds. He should have been permitted to utilize such admissions as were made by the respondent in her proofs of claim by way of then establishing that such representations were false and that respondent was not equitably entitled to the proceeds of the policies under the facility of payment clause, even though those payments' were made under circumstances that justly entitle the insurance company to protection. It was error to sustain the respondent’s objection to the questions propounded and the proof offered at folios 35 and 39. The respondent should have been put to her proof. Lazansky, P. J., Hagarty, Carswell, Davis and Adel, JJ., concur.