In re the Estate of Einbinder , 271 A.D.2d 978 ( 1947 )

In a discovery proceeding the decree in the Surrogate’s Court, Kings County, made after trial before an official referee, declares the administratrix to be entitled to the property held by the appellants, and directs the appellants to deliver the same or its value to the administratrix. Decree, insofar as an appeal is taken (the first three decretal paragraphs), reversed on the law and the facts, without costs, and the matter remitted to the Surrogate’s Court to enter a decree dismissing the petition in respect of the matters therein contained, upon which the aforesaid decretal paragraphs are based. Applicable findings of fact are reversed. The proof fails to sustain the allegations of the petition to the effect that the decedent was the owner of the property, that the legal title to it was held by the appellants under an agreement to redeliver on demand, and that such agreement was breached. The appeal from the order referring the issues to an official referee is dismissed, without costs. The order is not appealable. In view of the above decision the appeal from the order denying the motion to overrule the referee’s report is dismissed, without costs. Lewis, P. J., Adel and Nolan, JJ., concur; Carswell, J., concurs as to dismissal of the appeal from the order referring the issues to an official referee; but as to the decree and the order denying the motion to overrule the referee’s report, he dissents and votes to affirm the decree and order; Aldrich, J., deceased. Settle order on notice.