In re the Estate of Unger

New York Surrogate's Court

In re the Estate of Unger

172 Misc. 952, 16 N.Y.S.2d 609, 1939 N.Y. Misc. LEXIS 2581

CourtNew York Surrogate's Court

DecidedDecember 20, 1939

StatusPublished

Cited by2 cases

This text of 172 Misc. 952 (In re the Estate of Unger) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Unger, 172 Misc. 952, 16 N.Y.S.2d 609, 1939 N.Y. Misc. LEXIS 2581 (N.Y. Super. Ct. 1939).

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Opinion

Wingate, S.

Under section 316 of the Surrogate’s Court Act the provisions of the Civil Practice Act are made applicable to pro[953]*953ceedings in Surrogates’ Courts in the absence of express or “ plainly implied ” contrary intent. Nothing within this connotation is to be found in the Surrogate’s Court Act respecting replies, wherefore section 274 of the Civil Practice Act is clearly applicable and accords a discretionary right to the court to direct the filing of a reply where an answer contains new matter constituting a defense by way of avoidance. The answer in this proceeding complies with this description, wherefore filing and service of a reply will be directed.

Matter of Hearne (171 N. Y. Supp. 984) was a probate proceeding and the statement in Matter of Work (76 Misc. 403, 404) is a dictum only. These - cases are not authorities against the power of the surrogate to direct a reply in a discovery proceeding. Even were the contrary the fact, however, the court would decline to follow them. Matter of Kevill (166 Misc. 230) is not in point.

Whereas, therefore, the court will exercise its discretionary authority to direct a reply it deems the simultaneous motion for a bill of particulars premature.

The petitioner will be directed to serve and file a reply within ten days.

Enter order on notice in conformity herewith.

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Wingate, S.

Under section 316 of the Surrogate’s Court Act the provisions of the Civil Practice Act are made applicable to pro[953]*953ceedings in Surrogates’ Courts in the absence of express or “ plainly implied ” contrary intent. Nothing within this connotation is to be found in the Surrogate’s Court Act respecting replies, wherefore section 274 of the Civil Practice Act is clearly applicable and accords a discretionary right to the court to direct the filing of a reply where an answer contains new matter constituting a defense by way of avoidance. The answer in this proceeding complies with this description, wherefore filing and service of a reply will be directed.

Matter of Hearne (171 N. Y. Supp. 984) was a probate proceeding and the statement in Matter of Work (76 Misc. 403, 404) is a dictum only. These - cases are not authorities against the power of the surrogate to direct a reply in a discovery proceeding. Even were the contrary the fact, however, the court would decline to follow them. Matter of Kevill (166 Misc. 230) is not in point.

Whereas, therefore, the court will exercise its discretionary authority to direct a reply it deems the simultaneous motion for a bill of particulars premature.

The petitioner will be directed to serve and file a reply within ten days.

Enter order on notice in conformity herewith.

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Bluebook (online)

172 Misc. 952, 16 N.Y.S.2d 609, 1939 N.Y. Misc. LEXIS 2581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-unger-nysurct-1939.

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