Friedman v. Kelly

240 A.D. 729

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1933
• Status: Published

Opinion

Order of the Surrogate’s Court of Kings county denying leave to the petitioners to issue execution upon their judgments reversed on the law and the facts, with ten dollars costs and disbursements, payable out of the estate, and the matter remitted to the Surrogate’s Court to be heard anew. On the undisputed facts contained in this record, the petitioners’ application should have been granted. It appears, however, in the brief of the respondent that there are certain facts which, if incorporated in appropriate affidavit form, might bar petitioners from having the relief they seek at this time if they are unable to successfully challenge the existence of these facts. Hence, the matter is remitted in order that it may be disposed of on a proper record, giving such further consideration as may be merited with respect to claimed payments made to next of kin in advance of payment of debts and the effect thereof, under the cases, on the present application. Lazansky, P. J., Kapper, Hagarty, Carswell and Tompkins, JJ., concur.