Opinion
May 31, 1963
Robert E. Horton for Mabel L. Van Keuren and another, as executors of Emma E. Sheridan, deceased, petitioners.
Sam Cherchia for John K. Hicks, respondent.
Acting Surrogate. The executors of the estate of Emma E. Sheridan have filed their petition seeking by way of a discovery proceeding to compel the respondent to turn over the sum of $2,280 which they allege in their petition was loaned by the decedent to the respondent, John K. Hicks.
Sections 205 and 206 of the Surrogate's Court Act provide for discovery proceedings such as this one. Such proceedings are now liberally construed. This proceeding cannot however be used to collect the debt alleged in this petition. The courts have held consistently that discovery proceedings are not available to collect a common debt. Such obligations must be enforced in a common-law court. ( Matter of Thoms, 165 Misc. 398; Matter of Faulkner, 134 Misc. 507; Matter of Thomas, 235 App. Div. 450.)
The application is, therefore denied and the proceeding dismissed without prejudice to the rights of the executors to proceed in a different manner and forum to enforce their rights, if any, to the funds in question.
Submit decree in accordance with this decision.