
    In the Matter of the Accounting of Kenneth C. Cole, as Public Administrator of the County of Westchester, as Administrator of the Estate of Anthony Venti, Deceased.
    Surrogate’s Court, Westchester County,
    December 5, 1956.
    
      Joseph A. Lichtenthal for petitioner.
    
      Fink, McNamee & Pavia for objectant.
    
      William, C. Sherr for Lena Massari, attorney in fact for widow,
   Samuel Faile, S.

In this administrator’s accounting proceeding the attorneys for the Consul General of Italy have applied for the examination in his own behalf on written interrogatories of a national of Italy residing in or near Borne in order to establish a rejected claim for legal services alleged to have been rendered to decedent. The application is opposed on the ground that the testimony of such party is barred by section 347 of the Civil Practice Act; the proof of claim does not state facts sufficient to constitute a cause of action, and that the moving papers fail to establish the necessity of such examination.

The objections to the requested examination are overruled and dismissed. The court determines that such examination is material and necessary and that the proof of claim filed sets forth facts sufficient to constitute a cause of action. Section 288 of the Civil Practice Act expressly authorizes a party to an action or proceeding to cause a deposition to be taken in his own behalf. The possibility that on the trial of such action such party may be incompetent to testify to personal transactions with decedent by virtue of section 347 of the Civil Practice Act, does not affect the right to such examination, under section 288 of the Civil Practice Act, as to such transactions. (Lemlich v. Lemlich, 266 App. Div. 748.)

Settle order.  