
    Estate of Antoinette Knittel, Deceased.
    
      (Surrogate's Court, New York County,
    
      Filed February 1, 1887)
    Surrogate’s Court—Proceedings to discover property—Inquiry when ordered—Code Civil Proceedure, §§ 2706, 2714.
    
      The representative of an estate is not accorded by Code Civil Procedure, §§ 2706, 2714. the right to examine a debtor of his decedent merely for the sake of ascertaining the nature and amount of such debtor’s liability to the estate
    
      John McCrone, for petitioner; Norwood & Coggeshall, for resp’t
   Rollins, S.

In the lifetime of Antoinette Knittel, this decedent, who died before she had attained her majority, one Margaret Knittel, now deceased, deposited in the Bowery Savings Bank, in trust for Antoinette’s benefit a certain sum of money. The administratrix of this estate has caused the president of such savings bank to be cited before the surrogate, and now asks that such president be examined in order that she, the petitioner, may be “fully advised as to said moneys and the detention by said bank of the same,” and in order that she may obtain payment of the same.

It is claimed by counsel for the bank that the petition shows on its face that the applicant is not entitled to the relief which she seeks and that such petition should, therefore, be dismissed.

I have no doubt of the purpose which the legislature aimed to accomplish by the enactment of sections 2706-2714 of the Code of Civil Procedure, the provisions of law here invoked by the petitioner. Those sections were designed to afford a simple and summary procedure whereby the executor or administrator of a decedent might obtain an order for the surrender and delivery of such money or other property belonging to such decedent’s estate as should be discovered to be in the hands or under the control of some persson or persons not lawfully entitled to the possession thereof.

The sections of title 4 of chapter 18, which precede section 2712, merely point out the course which must be pursued by the representative of a decedent’s estate in order to effect the result indicated in the last named section, i. e., the delivery of any money or property of such estate found to be withheld or concealed by one having no just title to its possession.

Whenever, therefore, it is apparent at any stage of a proceeding based upon the sections referred to that such a result is in the nature of things unattainable, the proceeding should terminate.

Assuming the truth of the allegations of this petition, it is clear that no disclosures, that might be made upon an examination of the person here cited, would justify such an order as is contemplated by section 2712, for it is true, as counsel for the respondent contends, that the moneys which were deposited in the Bowery Savings Bank by Margaret Knittel became at once the property of the bank, and that by reason of such deposit a liability was created on the part of the bank, to pay thereafter an amount equal to such deposit, together with interest thereon according to the terms of the contract under which such deposit was made. Whitlock v. Bowery Savings Institution, 36 Hun, 460; Lund v. Seaman’s Bank for Savings, 37 Barb., 129; People v. Mechanics and Traders Savings Institution, 92 N. Y., 7.

While it must be assumed, for the purposes of the respondent’s motion to dismiss this proceeding that the bank has never paid over or accounted for its indentedness, it is nevertheless true that it has now in its hands no specific moneys whose delivery to the petitioner this court has authority to direct by virtue of section 2712.

The fact that the deposit in question was made, not to the credit of the depositor herself, but in trust for another person, and that person an infant, is a circumstance which does not, in my judgment, affect the matter here presented for determination.

A decision that this inquiry must proceed could only be justified upon the broad ground that the representative of' an estate is accorded, by sections 2706-2714, the right to examine a debtor of his decedent merely for the sake of ascertaining the nature and amount of such debtor’s liabilities to the estate. This ground is untenable.

Proceedings dismissed, without costs to either party.  