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MATTER ESTATE HARRY SCHULMAN (11/13/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


November 13, 1969

IN THE MATTER OF THE ESTATE OF HARRY SCHULMAN, DECEASED. MAE SHULMAN, APPELLANT; ALBERT SHULMAN ET AL., RESPONDENTS

Concur -- Stevens, P. J., Eager, Capozzoli, Markewich and Nunez, JJ.

The Surrogate's finding in this discovery proceeding (SCPA 2103) that petitioner failed to establish that she is entitled to any property in respondent's possession, is against the weight of the credible evidence. In our view petitioner's proof was sufficient to raise an issue of title to the money and other personal property described in the petition. Respondent is, therefore, directed to serve and file an answer (see SCPA 2104). In the interests of the administration of justice the issue thus raised is to be tried in the Supreme Court, Bronx County (N. Y. Const., art. VI, ยง 19, subd. a) where there is said to be (respondent's answer) another action pending between the same parties seeking the same relief. If possible, both matters should be either consolidated or jointly tried. Settle order on notice.

Disposition

Decree entered April 14, 1969, reversed, on the law and the facts, with costs to abide the event.

19691113

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