In re the Estate of Lukas

37 A.D.2d 689

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1971
• Status: Published

Opinion

Order unanimously affirmed, without costs. Memorandum: Petitioner, a legatee named in a prior will, seeks an examination before trial of the attesting witnesses to the propounded will. He has already examined them under SCPA 1404. Subdivision 4 of that section provides in part: “ No person who has been examined as a witness under this section shall be examined in the same proceeding under any other provision of law except by direction of the court. The attesting witnesses may be examined as to all relevant matters which may be the basis of objections to the probate of the propounded instrument.” Petitioner does not claim that he was precluded from a complete examination of these witnesses on his original examination nor does he invoke the favorable exercise of the Surrogate’s discretion by making any special showing as to why this additional examination is necessary. The purpose of the statutory limitation on the number of examinations of attesting witnesses is salutary (see Practice (1onmip.nta.ry and Revisers’ Notes; McKinney’s Cons. Laws of N. Y., Book 58A, SCPA 1404). Accordingly, the order should be affirmed. (Appeal from order of Onondaga County Surrogate denying motion for examination before trial.) Present — Goldman, P. J., Marsh, Witmer, Cardamone and Henry, JJ.