In re Van Bokkelen

247 A.D. 721

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1936
• Status: Published

Opinion

Appellant brought this discovery proceeding to recover the amount of certain payments made to respondent in Argentina by the representative of decedent’s domiciliary estate in satisfaction of debts incurred by decedent to respondent. The ground upon which appellant seeks to recover is that after the payments were made it was ascertained that decedent was insolvent and his assets insufficient to pay his debts in full. Respondent filed an answer containing denials and six affirmative defenses. Appellant moved to strike out five of the six affirmative defenses as insufficient in law and for an order granting the prayer of the petition. Respondent made a cross-motion to dismiss the petition upon the grounds that the court had no jurisdiction and that the petition stated no cause of action. The surrogate denied appellant’s motion and dismissed the petition. Order appealed from modified by denying respondent’s motion to dismiss the petition without prejudice to a renewal of the motion by respondent upon proof that the fund was received in Argentina in the course of the administration of the estate according to the law of the domicile, and as so modified affirmed, with twenty dollars costs and disbursements to the appellant. No opinion. Present — McAvoy, Townley, Untermyer, Dore and Cohn, JJ.