In re Nay , 19 N.Y. St. Rep. 259 ( 1887 )

The Surrogate.

This is a discovery proceeding under § 2706 of the Code of Civil Procedure. The petitioner alleges that, upon an examination of the books, memoranda and returned checks of the decedent, it has been discovered that one John Dunne, the person herein cited, is in possession of a large sum of money, to wit, nine hundred dollars, belonging to the decedent’s estate. A verified answer has been interposed by Dunne, in which, after denying the allegations of the petition, he insists that he is “ the owner of said sum of money, to wit, nine hundred dollars, mentioned in said petition.”

If the petition is to be interpreted as referring to and describing any particular definite parcel of coins, treasury notes, or bank bills, it is the duty of the Surrogate, in view of the interposition of the answer to dismiss the proceeding (Code Civ. Pro., § 2710). A like direction should be given, if the petition is to be interpreted, as simply alleging an indebtedness on Dunne’s part to the decedent’s estate. The procedure established by §§ 2706-2714 was not designed to enforce the collection of debts.

Petition dismissed.