In re the Estate of Lehmann , 85 Misc. 654 ( 1914 )

Schulz, S.

The proceeding was brought under section '2707 of the Code of Civil Procedure to discover property of the above named decedent, alleged to be in the possession of the respondent. The respondent interposed an answer in which he denied that he had any property in his possession or under his control belonging to the estate of the deceased, or which should be delivered to the petitioner. He admitted having in his possession a pass-book and a certificate of ten shares of stock of the Business Men’s Building and Loan Association of Jersey City, N. J., but denied that they were the property of the decedent or of her estate and alleged that he was the owner of the said book and certificate and entitled to the possession thereof. He also stated that he was “ not willing to consent to the determination of his rights if disputed in this court.” _ The surrogate, nevertheless, and by virtue of the power given him by section 2709 of the Code of Civil Procedure, directed the examination to proceed (Matter of Gick, 113 App. Div. 16), and the same has been concluded.

The power of the surrogate to direct the delivery of property must be exercised with great care. He should not make an order adverse to a party cited, unless it conclusively appears as a matter of law, from the evidence produced, that his claim or title is not well founded. Matter of Gick, supra. From the examination had herein, it appears that there are questions of fact involved affecting the petitioner’s right to possession, which the surrogate cannot determine without the consent of the parties. Code Civ. Pro. 2710; Matter of McGee, 63 Misc. Rep. 494; Matter of Kellogg, 72 id. 303. The respondent having refused to consent to the determination of this matter by the surrogate, it must under the circumstances here present' end, and the petitioner must seek some other forum having jurisdiction to decide; upon the merits, which, under the circumstances, I have no power to do. The proceeding is, therefore, dismissed, but not upon the merits and without costs. Settle order accordingly on two days’ notice.

Decreed accordingly.