thorized. Such agreement not having been set up or proved, the plaintiff is not in a position to claim she had a right to the possession of the premises. She has had her day in court, with full opportunity to be heard, and to assert and protect her rights; and, having failed to do so at the proper time, the record of the proceedings, upon which she might have done so, is a bar to her right to recover in this action. The judgment is conclusive that no other tenancy existed than that which was claimed in the proceedings had, and also as to the rent due and unpaid, and the holding over after default in its payment." As the judgment in that case was held to be conclusive that no other tenancy existed than that which was claimed in the prior summary proceedings, so here the former judgment should be held conclusive that the plaintiff has no other right to the use or occupation of the land in question than the right which was litigated in the former action. For these reasons, I think the judgment should be reversed, and a new trial granted, costs to abide the event. All concur, except PARKER, P. J., and MERWIN, J., dissenting. BROWN V. GEORGI et al. (City Court of New York, General Term. May 27, 1898.) 1. DISCOVERY-INSPECTION OF PAPERS-DENIAL OF POSSESSION. A discovery is properly ordered in an action on a lease, where the complaint alleges that plaintiff lost his copy, and that defendants are in possession of a duplicate, and defendants do not deny the execution of a lease with plaintiff, but merely deny that they executed the lease mentioned in the complaint and in the application for the order of discovery, and allege that they did not have and never had in their possession any such lease, or the lease referred to by plaintiff, and that they had no knowledge of the whereabouts of any such lease. 2. SAME-NONCOMPLIANCE WITH ORDEr-Remedy. Under Code Civ. Proc. § 808, the court may, on defendant's refusal to comply with an order to deposit in court certain papers on which the action is based, strike his answer. Appeal from special term. Action by William L. Brown against William Georgi and another. From an order of discovery granted against defendants, and from an order striking their answers for refusal to comply therewith, defendants appeal. Affirmed. Argued before CONLAN and SCHUCHMAN, JJ. H. A. Vieu, for appellant William Georgi. C. F. Swartt, for appellant Isabella Georgi. CONLAN, J. Appeal from an order granting motion for discovery and from orders striking out the answers of the defendants for refusing to comply with the terms of the first and second orders. We are strongly constrained to believe, from the allegations in the petition and the bare denials in the opposing affidavits, that a written lease was executed between the parties of the premises in question, and this is the paper concerning which discovery is sought. The and 90 New York State Reporter. plaintiff has sufficiently accounted for the loss of the duplicate original furnished him, and from the bare denials of the defendants it is apparent that the form of the contract sued upon may be different from the one alleged in the complaint. The defendants do not deny that they executed a lease with the plaintiff. The language is peculiar, to say the least, to wit, "denies that he and his co-defendant ever executed the lease mentioned and referred to in the moving papers on this motion and in the complaint herein, or that he ever had, or now has, any such lease in his possession or under his control, and his co-defendant says she is not now and never has had the alleged lease referred to in the moving papers herein in her possession or under her control, and has no knowledge of the whereabouts of any such lease, if any such exists." The order for discovery is not so easily evaded. It describes a certain lease or agreement "made by the above-named plaintiff, or his agent, with the above-named defendants, or either of them, between August 15, 1896, and October, 1896, of premises No. 113 West Seventy-First street, in the city of New York, and any lease, agreement, or writing under which the said defendants, or either of them, occupied the said premises, from October 1, 1896, to May, 1897, and under which they, or either of them, paid rent for the months of October, November, and December, 1896." That the defendants were in possession and occupancy of the premises under some lease or agreement sufficiently appears from the record presented on this appeal, and, in so far as the allegations of the complaint concern such possession and occupancy, are attempted to be denied in the answers of the defendants. These denials ought to be wholly disregarded. In Hepburn v. Archer, 20 Hun, 535, it was held that the bare denial of possession of the contracts was not sufficient for the court to deny a motion to have such contracts deposited with the court for inspection, and in numerous cases it has been held that the affidavit must show positively, and not evasively, that the paper is not in the party's possession. Briefly stated, the situation may be said to be substantially as follows: The parties exchanged leases, and the plaintiff, having lost his copy, brings his case upon the best recollection of the subject-matter or upon his knowledge of the facts at the time of framing his com plaint. Because he has not closely followed the provisions of the instrument sued upon, the defendants evasively deny the existence of any such paper as the one sued upon; and then, for the purpose of discovering the precise paper, a petition is presented to the court. in which the description of the paper is attempted, and again the defendants deny having executed any such paper. They nowhere deny having executed a lease of the premises occupied by the defendants, and belonging to the plaintiff. We are of the opinion, from all that appears on the record, that the opposition manifested by the defendants to the motion for discovering is not meritorious, and ought not to be permitted to delay or postpone the regular and ordinary progress of the action to an early and final determination. If the differences of the parties can be adjusted or disposed of in the action now pending, we see no reason why such course should not be followed. That they could is clear to us, if the paper in the defendants' possession is produced, and the plaintiff allowed to amend his pleadings with reference thereto, as he may be advised after an examination of it. Under the provisions of section 808 of the Code, the court had the undoubted power to strike out the defendants' plea for their failure to comply with the terms of the orders for depositing all the papers in court. We think the whole matter was properly disposed of in the court below, and that the orders appealed from should be affirmed. Orders affirmed, with costs. SCHUCHMAN, J., concurs. (26 Misc. Rep. 179.) In re OWEN. (Surrogate's Court, Kings County. January, 1899.) WILLS RIGHT OF LEGATEE WHO IS A SUBSCRIBING WITNESS. A legacy to a subscribing witness to a will is not void, though his testimony is received in the probate proceeding, if the will was provable without such testimony. Accounting of George B. Owen, as executor of David F. Beck, deceased, before a referee. Referee's report confirmed. George C. Comstock, for executor. Charles M. Camp, special guardian. Robert M. Stewart, for Martin L. Kay and others. ABBOTT, S. In the proceeding to probate this will I held that the testimony of the two subscribing witnesses, Slandorff and Parrish, was sufficient to warrant probate being granted in every respect except as to the identity of the testator, and opportunity was afforded the proponents to introduce further testimony upon that point alone. Such testimony was afterwards satisfactorily supplied, and I then permitted Mr. Owen's testimony to be stricken from the record, as he was a beneficiary under the will, and by testifying was presumed to have forfeited his legacy. The appellate division (In re Beck's Will, 6 App. Div. 211, 39 N. Y. Supp. 810) affirmed my conclusion in all respects except as to the striking from the record of Mr. Owen's testimony, and directed that it be reinstated. The appellate division declined to pass upon the question of the forfeiture of Mr. Owen's legacy in the probate proceeding, holding that such question must be passed upon in an accounting, or in an action brought for that purpose. The referee before whom this question has been litigated in an accounting proceeding holds that the legacy to Mr. Owen is not void; that, although he was a subscribing witness, and his testimony was received in the probate proceeding, yet the will could have been proved without his testimony, and it was unnecessary. I concur with the decision of the learned referee, and his report is in all respects confirmed. See Caw v. Robertson, 5 N. Y. 125, and Cornwell v. Wooley, 1 Abb. Dec. 441. Two subscribing witnesses having given all the testimony necessary to probate the will, except as to the identity of the testator, and that having been supplied from sources and 90 New York State Reporter. outside of Mr. Owen, his testimony is plainly superfluous and unnecessary. Decreed accordingly. (26 Misc. Rep. 104.) In re CONATY'S WILL. (Surrogate's Court, New York County. January, 1899.) WILLS-TESTAMENTARY CAPACITY-EVIDENCE. At the execution of his will the testator was suffering from injuries from which he died some hours later. One subscribing witness-a lawyer -testified he drew the will in the testator's presence, after receiving clear and full instructions as to the disposition of the property, and information as to its character; that the testator was of sound mind; that the will was read over to him, and he executed it with all formalities. etc. This was corroborated by the other subscribers and others. The will gave to the widow, the sole contestant, not much less than she would have received if the will were invalid. Held, that this showing of the testator's competency was not rebutted by expert testimony that a man receiving such injuries could not carry on the conversations sworn to. nor comprehend the nature of the testamentary act. Proceedings for the probate of the will of Thomas J. Conaty, deceased. Contest by widow. Will admitted to probate. Cornelius F. Collins, for proponent. ARNOLD, S. It is conceded that the decedent was suffering from the effects of a painful injury at the time of the execution of the will presented for probate, and that his death resulted from such injury some hours after said execution; but one of the subscribing witnesses, who is a lawyer, testified that he drew the will in the presence of the testator, after receiving from him full and clear instructions as to the disposition he desired to make of his property, and information as to the character of the same; that he was then of sound mind; that, when completed, the witness read it over to him, and it was then executed with all the formalities required by law. The testimony of the other subscribing witness is in corroboration of this, and there is additional supporting evidence. The testator's property consisted of real estate of the value of about $5,000 above mortgage liens, and of personal property of about the same amount. The will gives the testator's wife $1,000 in addition to her dower right, makes bequest of $250 to the sister of his first wife, and appoints her guardian of his only child (the issue of his earlier marriage), a minor, who resided with the legatee, and to which child he gives all the residue of his estate. It will thus be seen that the widow, who is the sole contestant, may possibly, if the will be sustained, receive thereunder something, but not much, less than she would be entitled to if probate be refused; but it cannot be said that these testamentary provisions were unnatural, or indicate unsoundness of mind, or a lack of comprehension by the testator of his relations towards the members of his family and their several claims upon his bounty. Testimony of physicians was introduced on the part of the contestant to the effect that either from their personal observation of the decedent's condi tion at the hospital, where he was brought after receiving his injuries, and died two days thereafter, or from their experience and knowledge in respect to the nature and consequences of such injuries, they were of opinion that he could not have been able to maintain and carry on the conversations sworn to by proponent's witnesses, or to comprehend the nature of the testamentary act which it is claimed he performed. This evidence, however, does not, in my judgment, outweigh the positive testimony of the proponent's witnesses, which establishes to my satisfaction the due execution of the will, and the competency of the testator. A decree may be submitted admitting the will to probate. Decreed accordingly. (26 Misc. Rep. 106.) In re ROONEY'S ESTATE. (Surrogate's Court, New York County. January, 1899.) MUNICIPALITIES-PUBLIC ADMINISTRATOR - PROPERTY OF UNKNOWN HEIRSCOMPTROLLER-DEMAND BY PERSONS ENTITLED. Greater New York Charter, § 261, providing that no action shall be maintained against the city unless the petition shows that at least 30 days have elapsed since the demand was presented to the comptroller for adjustment, and that he refused to do so, applies to a claim for moneys paid to the comptroller by the public administrator belonging to unknown heirs, since Laws 1898, c. 230, § 29, makes the city responsible for all such moneys, and gives those entitled to them the same remedies against the city as they would have against any executor. Application of certain persons claiming to be relatives of Mary Rooney, or Donnelly, deceased, for an order directing the chamberlain to pay over to them certain moneys deposited with the comptroller of the city of New York by the public administrator. Dismissed. Julian B. Shope, for petitioners. John Whalen, Corp. Counsel, for city of New York. ARNOLD, S. This application is made on behalf of alleged next of kin of the decedent, for the payment to them of certain moneys paid to the comptroller by the public administrator of the city of New York, upon his accounting, as administrator of this estate, for the benefit of the intestate's next of kin, whose names were then unknown. A citation having been issued to the mayor, aldermen, and common. alty of the city of New York, to show cause why the application should not be granted, the corporation, on the return thereof, has appeared by its counsel, and asked for the dismissal of the proceedings, upon the ground that it is not shown by the petition that the claim or demand upon which this special proceeding is founded was presented to the comptroller for adjustment; that at least 30 days had elapsed at the time of the commencement of the proceeding since such presentation, and no adjustment or payment thereof had been made, as required by section 261 of the Greater New York charter. The city of New York, by section 29 of chapter 230 of the Laws of 1898, is made responsible and answerable for all moneys paid into the city treasury by the public administrator; and all persons entitled to receive such moneys are given the same remedies against said corporation therefor |