
    Matter of the Petition of David M. Peyser, as Administrator, etc., of Theresa Peyser, Deceased.
    (Surrogate’s Court, New York County,
    October, 1898.)
    Discovery proceedings in aid of an administrator —. Denials insufficient under Code Civil Procedure, § 3709.
    Where the petition of an administrator filed under section 2707 of the Code of Civil Procedure, alleges that his intestate died leaving certain property which has come into the possession of persons who are thereupon cited to attend an inquiry respecting the same, and their answer denies such allegation, although admitting that certain other property belonging to the intestate’s estate is in their possession (which they offer to surrender), and further alleges that one of the persons cited is the owner or is entitled to the possession of all the property specifically described in the petition, it should not be dismissed under section 2709 of the Code of Civil Procedure, as the persons cited cannot be permitted to deny, in effect, the existence of the property, and at the same time claim title to or a right of possession of it.
    Application for examination of respondents as to certain assets in their possession belonging to the estate.
    
      Mitchell L. Erlanger, for petitioner.
    Platzek, Stroock & Herzog, for respondents.
   Arnold, S.

The respondents deny, hy the answers filed hy them, that the decedent left any property answering the description of same contained in the petition, or otherwise, except that they admit that she left certain personal property consisting of a number .of bonds, a small amount of money in bank, a claim against one of the respondents, and some wearing apparel, which they are willing to deliver to the petitioner; and aver that one of the respondents is the owner of all the property specifically described in the petition, or is entitled to the possession thereof. These answers do not appear to me to be sufficient under section 2709 of the Code of Civil Procedure to require the dismissal of the proceeding. The petitioner alleges that the decedent was possessed at the time of her decease of certain jewelry, furniture, moneys and other effects, and that these have come into the possession of the respondents, but these allegations are denied by the latter, and they do not admit that any property which ever belonged to the decedent is in their possession or under their control, except as before stated, nor is there any admission that any such property so described ever existed. If they had admitted the existence of such property, that they had the same in their possession or under their control, and then claimed to be the owners thereof, or entitled to the possession of the same by virtue of some lien thereon or special property therein, the nature and extent of which had been stated in the answer, the petition might properly be dismissed except as to those articles which they admit belong to the estate; but I do not see how they can be permitted to deny the existence of property and at the same time claim ownership thereof or right of possession thereto. The petitioner is entitled to an examination of the respondents for the purpose of discovering what knowledge or information they have in respect to any personal property belonging to the decedent’s estate, and such examination should proceed.

Decreed accordingly.  