In re the Estate of Martin

151 Misc. 93, 273 N.Y.S. 122, 1934 N.Y. Misc. LEXIS 1449

• Court: New York Surrogate's Court
• Decided: January 16, 1934
• Status: Published

Opinion

Delehanty, S.

This application for a bill of particulars is granted in respect of the following matters only.

Contestants will be required to state the names and addresses of each and every person charged with undue influence and fraud. They will be required to state the place or places and the time or times where the acts alleged to constitute undue influence and fraud took place.

They will be required to state whether or not any acts of physical violence or mistreatment of decedent or threats against decedent accompanied any acts of undue influence or fraud.

They will be required additionally to set forth in general terms the acts, course of conduct, false statements, suppressions of fact, and misrepresentations alleged to have been used in the fraud and in the practice of undue influence upon decedent.

In so far as the motion seeks to procure statement of specific acts it is denied.

In making this determination the court has enlarged the scope of the bill of particulars as authorized by Matter of Ross (115 Misc. 41; affd., 197 App. Div. 933.) The court is not willing to extend the relief here granted to the degree indicated in Matter of Mullin (143 Misc. 256, at p. 264). It deems that the relief here granted sufficiently protects contestants against the disclosure of their evidence upon particular points while at the same time it requires them at least in general terms to advise proponents of the issues which they must meet on that branch of the case wherein the burden of proof is on contestants. This ruling seems to be in accord with that made by the Appellate Division, First Department, in Albert v. Hamilton Fire Insurance Co. (226 App. Div. 789), not officially reported except as memorandum decision.

Submit order in conformity with the foregoing providing for service of bill of particulars on or before January 19, 1934.