In re the Estate of Keily , 51 Misc. 2d 714 ( 1966 )

John D. Bennett, S.

The contestant has submitted an order based on the court’s decision wherein the proponent was directed to obtain possession of a document from the Meadow Brook National Bank, and where the court directed that the scope of examination be extended to the period from the year 1958 to the date of decedent’s death. The proponent has submitted an affidavit opposing said proposed order on the grounds the recital paragraphs do not include this court’s decisions dated June 21, 1966 and August 19, 1966, and the affidavit of the proponent’s attorney dated July 1, 1966. Said matter should be set forth in the recital paragraphs.

When an order is to be settled the successful party is to submit an order and the unsuccessful party may either submit a different order, commonly called a counterorder, or file a statement opposing any feature of the proposed order (2 CarmodyWait, New York Practice, § 8:91; Carmody, New York Practice [Porkosch, 8th ed.], § 562).

This court feels that it is better practice, in order to avoid any confusion and delay, that a party who opposes a proposed order should file a counterorder together with any affidavit he desires pointing out his reasons for submitting a counterorder. The practice of merely submitting an affidavit only delays matters as a new order will have to be submitted if the court finds that the proposed order is not proper. Accordingly, the court directs that the proponent submit a counterorder on notice to the contestant.