In re the Estate of Lang , 53 A.D.2d 836 ( 1976 )

Decree of the Surrogate’s Court, Bronx County, entered April 24, 1974, which ordered and adjudged that Harriet Heller pay to the petitioner the sum of $3,282.40, unanimously affirmed on the facts, without costs and disbursements. In this estate discovery proceeding, the Court of Appeals by remittitur dated January 8, 1976 (38 NY2d 836), reversed, on the opinion of Surrogate Gelfand, the order of this court entered October 24, 1974 (45 AD2d 514) and remitted the matter to this court for a review of the facts pursuant to CPLR 5613. With respect to the second and final withdrawal of $5,469.89, the record supports concluding on a factual basis that the withdrawal was not consented to or authorized by the decedent. As to the first withdrawal of $1,094, the niece’s testimony before the Surrogate to the effect that it had been used to pay the nursing home for the benefit of the decedent does not find support in the information furnished by the home itself. Petitioner, executor of decedent’s estate, a nephew by marriage of the decedent and a certified public accountant, asserts that he examined the nursing home’s statements and did not find a receipt for said amount. The record sufficiently supports the factual determination by the Surrogate that the niece did not sustain her burden of proof that the withdrawals were with the direct or implied consent of the decedent or had been ratified by her. Concur—Markewich, J. P., Kupferman, Murphy and Lupiano, JJ.