
    William H. Doyle and Another, Respondents, v. Harry A. Gleason, as Executor, etc., of Ella L. Hickey, Deceased, Appellant, Impleaded with Trustees of St. Joseph’s Catholic Cemetery, Auburn, N. Y., and Others, Defendants.
    
    Fourth Department,
    March 13, 1935.
    
      
      Lionel 0. Grossman, Edward T. Boyle and Arnold R. Blumberg, for the appellant.
    
      Robert J. Burritt [Perry E. Leary of counsel], for the respondents.
    
      
      See 152 Misc. 641.
    
   Per Curiam.

Section 31 of the Personal Property Law, as amended by chapter 616 of the Laws of 1933, in effect April 29, 1933, does not apply. (Ralph v. Cronk, 266 N. Y. 428.) The receipt by plaintiffs of legacies under the last will does not estop them from bringing this action until the legacies are paid back. (Hoffman v. Hoffman, 232 App. Div. 466; Kine v. Farrell, 71 id. 219.) Defendants plead estoppel in their answers but make no claim of election of remedy. There was no such election. Plaintiffs did not bring on the probate proceeding; their rights under the claimed oral agreement could not be litigated in the probate proceeding (Matter of Lally, 210 App. Div. 757, 759, 760); they simply brought this action where they were compelled to bring it, viz., in the Supreme Court. (Matter of Hermann, 178 App. Div. 182, 191; affd., 222 N. Y. 564.) The parties should be left to their proof. As to the order denying the motion for a bill of particulars, the record contains no order denying a motion for a bill of particulars based upon the original complaint and nothing to show that such an order was served upon appellant. We treat the order before us on this appeal — based upon the second amended complaint — as if there had been no previous application. The demand in the moving papers is in all respects meritorious and the order denying the application is reversed and the motion granted, with ten dollars costs.

All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Lewis, JJ.

Order denying motion to dismiss complaint affirmed, and order denying motion for a bill of particulars reversed, both without costs, and motion granted, with ten dollars costs.  