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MATTER ESTATE MARGUERITE K. BOYCE (11/25/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


- decided: November 25, 1969.

IN THE MATTER OF THE ESTATE OF MARGUERITE K. BOYCE, DECEASED. VICTOR R. WOLDER, APPELLANT; AMERICAN CANCER SOCIETY ET AL., RESPONDENTS. (AND ANOTHER PROCEEDING.)

Orders entered in the Surrogate's Court, New York County, on March 18, 1969 and April 4, 1969, denying petitioner's motions to dismiss the affirmative defenses and counterclaims of respondents, unanimously affirmed, with $50 costs and disbursements to all parties filing briefs payable out of the estate. In affirming, we but subscribe to the view of the Surrogate to permit the defenses and counterclaims to stand at this stage of the proceedings because it is not "desirable to attempt to decide this case or aspects of it on pleadings before the facts have been fully explored." The appeals from the three orders entered March 18, 1969, granting examination of the petitioner and of a witness, are dismissed as moot, without costs and without disbursements, the depositions of both individuals having been completed. Concur - Stevens, P.J., Eager, Tilzer, Nunez and Steuer, JJ.

19691125

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