
    Matter of the Estate of Bertha Preisendorfer, Deceased.
    Surrogate’s Court, New York County,
    April, 1922.
    Surrogate’s Court — discovery proceeding — claim of title by respondent — when petition will be denied.
    Where in a discovery proceeding the respondent by answer claims title to the property sought to be discovered, and the only result of an examination would be to discover and furnish evidence which the petitioner could use in a pending action, an order of discovery will be denied.
    Discovery proceedings.
    
      A. Oberwager, for petitioner.
    
      Roger J. Heisler, for Olga L. McCauley, respondent.
   Foley, S.

In this discovery proceeding an answer has been filed, in which the respondent claims title to the property sought to be discovered. It also appears that an action has been commenced by the respondent in the Supreme Court of this county, in which issue has been joined. That action is against the savings bank and the administrator for the recovery of a bank deposit standing in the name of the decedent, claimed by the respondent as a gift causa mortis. The Supreme Court having first acquired jurisdiction, comity requires that this proceeding be dismissed. The only result of an examination held here would be to furnish and discover evidence which the petitioner could use in the pending action. Under the circumstances here present this course cannot be permitted. Matter of Denham, N. Y. L. J. June 23, 1917; affd., 180 App. Div. 935. Submit order on notice accordingly.

Ordered accordingly.  