Metropolitan Trust Co. v. Rogers

New York Surrogate's Court

Metropolitan Trust Co. v. Rogers

1 Dem. Sur. 365

DecidedMay 15, 1883

StatusPublished

This text of 1 Dem. Sur. 365 (Metropolitan Trust Co. v. Rogers) 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

Metropolitan Trust Co. v. Rogers, 1 Dem. Sur. 365 (N.Y. Super. Ct. 1883).

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Opinion

The Surrogate.

This proceeding is instituted under § 2706 of the Code for the discovery, etc., of property claimed, by the petitioner, to belong to decedent’s estate, of the alleged value of $150,000, consisting of the entire [367]*367capital stock of the Adriatic Fire Insurance Company, and the stocks and bonds of ten other’ companies and municipalities. The counsel for Mr. Rogers files a written answer, duly verified by him, under the last clause of section 2710, being the amendment added in 1881, and asks a dismissal of the proceeding. That amendment provides that, where such an answer shall be interposed, to the effect that the person cited is the owner of the property, or entitled to the possession thereof by virtue of any lien thereon or special property therein, the proceedings shall be dismissed. Hence, if the person so cited shall answer that he is the absolute owner of the property, he will not be required to show how he became such. It is the statement of a fact which ends the inquiry; but where he alleges, as in this case, that he is entitled to the possession by virtue of a lien upon, or special property in, it, his answer should state the facts necessary to sustain the allegation. It was attempted to so state them in this instance, the answer alleging that he holds it as receiver of the Adriatic Fire Insurance Company. This, I think, is not sufficient, as to any of the property other than the capital stock of such company, as to which, alone, it is conclusive. As to the other stocks and the bonds, he might as well claim that he holds them as the assignee of John Jones, and ask that, therefore, the proceedings be dismissed. As it was, however, alleged orally, and seemed to be conceded on the argument, that these other stocks and bonds, in which the decedent had some personal interest, were held, in some way, by the Adriatic Fire Insurance Company, of which the deceased had been duly appointed receiver in his lifetime, by the Supreme Court, and who, after his [368]*368death, was succeeded as such, by Mr. Rogers, I shall, before taking any further action, permit him to file an amended affidavit embodying these allegations, about which there seems to be no controversy, and then, if that be done, make an order dismissing the proceedings. Otherwise, the examination of Mr. Rogers as to these other stocks and the bonds will be proceeded with.

Ordered accordingly.

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The Surrogate.

This proceeding is instituted under § 2706 of the Code for the discovery, etc., of property claimed, by the petitioner, to belong to decedent’s estate, of the alleged value of $150,000, consisting of the entire [367]*367capital stock of the Adriatic Fire Insurance Company, and the stocks and bonds of ten other’ companies and municipalities. The counsel for Mr. Rogers files a written answer, duly verified by him, under the last clause of section 2710, being the amendment added in 1881, and asks a dismissal of the proceeding. That amendment provides that, where such an answer shall be interposed, to the effect that the person cited is the owner of the property, or entitled to the possession thereof by virtue of any lien thereon or special property therein, the proceedings shall be dismissed. Hence, if the person so cited shall answer that he is the absolute owner of the property, he will not be required to show how he became such. It is the statement of a fact which ends the inquiry; but where he alleges, as in this case, that he is entitled to the possession by virtue of a lien upon, or special property in, it, his answer should state the facts necessary to sustain the allegation. It was attempted to so state them in this instance, the answer alleging that he holds it as receiver of the Adriatic Fire Insurance Company. This, I think, is not sufficient, as to any of the property other than the capital stock of such company, as to which, alone, it is conclusive. As to the other stocks and the bonds, he might as well claim that he holds them as the assignee of John Jones, and ask that, therefore, the proceedings be dismissed. As it was, however, alleged orally, and seemed to be conceded on the argument, that these other stocks and bonds, in which the decedent had some personal interest, were held, in some way, by the Adriatic Fire Insurance Company, of which the deceased had been duly appointed receiver in his lifetime, by the Supreme Court, and who, after his [368]*368death, was succeeded as such, by Mr. Rogers, I shall, before taking any further action, permit him to file an amended affidavit embodying these allegations, about which there seems to be no controversy, and then, if that be done, make an order dismissing the proceedings. Otherwise, the examination of Mr. Rogers as to these other stocks and the bonds will be proceeded with.

Ordered accordingly.

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Bluebook (online)

1 Dem. Sur. 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metropolitan-trust-co-v-rogers-nysurct-1883.