
    In the Matter of the Estate of Lillie Minkin, Deceased. Joseph Kosofsky, Respondent-Appellant; Maximillian B. Salomon, Appellant-Respondent.
   Decree unanimously modified, on the facts and on the law, to the extent of substituting the sum of $10,000 for the sum of $7,000, provided therein and as modified is affirmed, without costs. The parties concede that the total sum involved is $10,000. The Surrogate found that a gift had not been established and his determination was fully justified by the proof. In the light of the Surrogate’s finding, it was error to direct the return of only $7,000 out of the total of $10,000, admittedly received by the respondent. Even if we assume that it was error for the Surrogate to have directed the return of the money at the termination of the inquisitorial stage of the proceeding, that error was cured when the respondent by his amended answer, alleged and then undertook to prove the receipt of the funds as a gift. This determination is, of course, without prejudice to the right of the respondent to prove his claim for the recovery of sums allegedly disbursed for and on behalf of the deceased. Settle order on notice. Concur — Botein, P. J., Rabin, M. M. Frank, McNally and Stevens, JJ.  