In re the Estate of Gergely , 193 Misc. 51 ( 1948 )

Collins, S.

In this discovery proceeding the respondent Irene Pick asserts that the filing of her answer, in form a general denial, requires the court to dispense with an inquiry and to treat the matter as an issue in litigation. The answer filed by the respondent does not affirmatively assert title to the subject matter of the proceeding. Consequently the pleadings frame no issue which the court may try under section 205 of the Surrogate’s Court Act. The deficiency is not satisfied by reason of the fact that an answer has been filed by the corporate respondent asserting that Irene Pick has an interest in the account which was opened with it by deceased. In Matter of Feinberg (185 Misc. 862), McGarey, S., had for decision an application very much like the present one. The Surrogate in that case denied an application to dismiss the petition stating that (pp. 864-865): ‘ ‘ A claim of title made prior to the institution of the discovery proceeding or in an affidavit in support of a motion to dismiss such proceeding cannot take the place of (a) an answer alleging title to or the right to possession of any property involved in the inquiry or (b) a claim of title made at the time of the inquiry. * * * The respondents are afforded an opportunity to serve and file an answer to this proceeding or take such other steps as they deem necessary with respect thereto within ten days after the service on their attorney of a copy of the order to be entered herein. In default thereof, the respondents will be directed to appear for examination ”.

The court will direct that the examination of the respondent take place on a date to be fixed in the order unless an answer asserting title is filed within ten days from the date such order is entered.

Proceed accordingly.