In re the Estate of Mendelson

15 Misc. 2d 837, 183 N.Y.S.2d 470, 1959 N.Y. Misc. LEXIS 4128

Opinion

John D. Bennett, S.

By notice of motion the respondent seeks to dismiss this discovery proceeding, the subject of which is a separation agreement allegedly in the possession of the respondent, an attorney of the decedent during his lifetime. The respondent, in his affidavit attached to the motion papers, among other allegations, states that he has an attorney’s lien on the “ duplicate original ” in his possession.

The motion papers state no grounds sufficient to sustain a dismissal of this proceeding. “ Such a proceeding should not be dismissed without adequate development of the facts and the present motion must fail unless there is no aspect of the situation which would permit a finding of estate interest in the property sought”. (Matter of Baumann, 75 N. Y. S. 2d 876, 877.)

The court is of the opinion that it has jurisdiction to determine the attorney’s retaining lien incidental to this discovery proceeding (Matter of Present, 15 Misc 2d 759). The motion is accordingly denied.

Settle order on five days’ notice, setting forth the time and place for the respondent to appear in the discovery proceeding.