In re Cohen

Appellate Division of the Supreme Court of New York

In re Cohen

254 A.D. 571, 2 N.Y.S.2d 764, 1938 N.Y. App. Div. LEXIS 6602

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 11, 1938

StatusPublished

Cited by2 cases

This text of 254 A.D. 571 (In re Cohen) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Cohen, 254 A.D. 571, 2 N.Y.S.2d 764, 1938 N.Y. App. Div. LEXIS 6602 (N.Y. Ct. App. 1938).

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Opinion

Decree of the Surrogate’s Court of Kings county, in so far as appealed from, granting letters testamentary to respondent Herman Cohen, and presently denying the application for letters testamentary of appellant Isidore Cohen, affirmed, without costs. We feel constrained to follow the precedents which hold that a person convicted in another jurisdiction of a crime which is there a felony, is not guilty of “ felony ” as that term is defined in section 2 of the Penal Law (Sims v. Sims, 75 N. Y. 466; National Trust Co. v. Gleason, 77 id. 400; People v. Gutter son, 244 id. 243) and that consequently such person is not a “ felon ” within the meaning of section 94, subdivision 4, of the Surrogate’s Court Act. (O’Brien v. Neubert [Matter of O’Brien], 3 Dem. 156; 67 How. Pr. 503; Matter of Canter, 146 Mise. 123.) Nor is the respondent Herman Cohen disqualified by reason of “ dishonesty ” within section 94, subdivision 5. The dishonesty apparently contemplated by the statute, under the cases, is dishonesty in money matters. (Matter of Flood, 236 N. Y. 408,411; Matter of Latham, 145 App. Div. 849, 854.) The record does not indicate that the crime of which he was convicted was of that character. Carswell, Adel, Taylor and Clofee, JJ., concur; Lazansky, P- J-, dissents from that part of the decision which affirms the granting of letters testamentary to Herman (referred to in the decree as Hyman) Cohen, but concurs in the decision in all other respects. [164 Mise. 98.]

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Decree of the Surrogate’s Court of Kings county, in so far as appealed from, granting letters testamentary to respondent Herman Cohen, and presently denying the application for letters testamentary of appellant Isidore Cohen, affirmed, without costs. We feel constrained to follow the precedents which hold that a person convicted in another jurisdiction of a crime which is there a felony, is not guilty of “ felony ” as that term is defined in section 2 of the Penal Law (Sims v. Sims, 75 N. Y. 466; National Trust Co. v. Gleason, 77 id. 400; People v. Gutter son, 244 id. 243) and that consequently such person is not a “ felon ” within the meaning of section 94, subdivision 4, of the Surrogate’s Court Act. (O’Brien v. Neubert [Matter of O’Brien], 3 Dem. 156; 67 How. Pr. 503; Matter of Canter, 146 Mise. 123.) Nor is the respondent Herman Cohen disqualified by reason of “ dishonesty ” within section 94, subdivision 5. The dishonesty apparently contemplated by the statute, under the cases, is dishonesty in money matters. (Matter of Flood, 236 N. Y. 408,411; Matter of Latham, 145 App. Div. 849, 854.) The record does not indicate that the crime of which he was convicted was of that character. Carswell, Adel, Taylor and Clofee, JJ., concur; Lazansky, P- J-, dissents from that part of the decision which affirms the granting of letters testamentary to Herman (referred to in the decree as Hyman) Cohen, but concurs in the decision in all other respects. [164 Mise. 98.]

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254 A.D. 571, 2 N.Y.S.2d 764, 1938 N.Y. App. Div. LEXIS 6602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cohen-nyappdiv-1938.

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