In re the Estate of Mosessohn

145 Misc. 378, 259 N.Y.S. 448, 1932 N.Y. Misc. LEXIS 1257

Opinion

Foley, S.

This is an application by notice of motion to permit the executor to pay over a special account in the name of the decedent to certain judgment creditors. The papers do not disclose in what capacity this fund is being held by the executor, nor the necessity for an application of this character. A proceeding can no more be begun by notice of motion in this court than can an action be begun in some other forum by notice of motion without the service of a summons. There is no pending proceeding in this court in which relief such as that sought here could be granted on motion.

The motion is denied, without prejudice to the institution of an appropriate proceeding under the Surrogate’s Court Act. Submit order on notice accordingly.