In re the Probate of the Will of Gelberg , 23 Misc. 2d 107 ( 1960 )

John D. Bennett, S.

This is a motion in a contested probate proceeding to vacate a notice of examination of Milton Jacobson, an attorney, served by the contestants.

Milton Jacobson asserts that his relationship with the decedent was that of attorney and client, and that the testimony sought herein is privileged under section 353 of the Civil Practice Act.

"While Mr. Jacobson was the attorney who drafted the alleged will, witnessed its execution, and was executor therein and therefore is subject to examination under section 354 of the Civil Practice Act, he has already been examined as to those matters under section 141 of the Surrogate’s Court Act. In this respect the situation differs' from that presented in Matter of Walsh (154 N. Y. S. 2d 987) where Surrogate Hazleton allowed an examination with the right of raising the question of privilege upon such examination. In this application, the papers fail to indicate any sufficient circumstances to warrant an examination before trial under section 288 of the Civil Practice Act, which were not obtainable in the previous examination or excluded by the privilege of attorney and client.

The motion to vacate is granted, without costs to either party and without prejudice to a renewal thereof upon papers showing a possibility of competent evidence not protected by the relationship of. attorney and client, and not obtainable by examination under section 141 of the Surrogate’s Court Act.

Settle order on five days’ notice in accordance herewith, with three additional days if service is made by mail.