
    In the Matter of Max Lancet, Respondent. Ralph M. Sacks, as Executor of M. Mortimer Lancet, Deceased, Appellant.
   On December 7, 1956, petitioner obtained an ex parte order to perpetuate his testimony for the purpose of filing a claim or commencing an action against the estate of his deceased son. The petition was predicated upon the age and physical condition of the applicant. Coneededly, at the time the petition was verified and the order signed, the applicant was unaware of the death of his son. It is urged that the information was withheld to avoid the serious consequences upon the health of an old and feeble man that might follow the announcement of the unexpected death of his child. Even assuming that the application for the order dated December 7, 1956, was made in good faith and the concealment of petitioner’s lack of knowledge of the facts and the purpose of the order was cloaked with good intentions, it cannot be permitted to stand, for it was obtained under circumstances which are equivalent to a fraud practiced upon the court. No one has the right to commence an action on behalf of an adult, not an incompetent, without his permission. We cannot assume that such permission would have been given simply because other members of the family believe that proceedings against the estate should be undertaken by the petitioner. Order denying the motion to vacate the order of December 7, 1956, unanimously reversed and the motion granted with leave, however, to make a new application to perpetuate testimony upon papers disclosing knowledge of the facts and intention to take the action for which the testimony is sought. Concur — Peek, P. J., Breitel, Botein, Rabin and Frank, JJ.  