In re the Estate of Damsky

Dodd, J.,

Acting Surrogate. The present application, whereas merely a routine motion for the examination of an opponent before trial pursuant to the provisions of section 288 of the Civil Practice Act, involves two legal questions which possess somewhat more than passing interest.

*461The main proceeding to which this motion is incidental is to compel the administrator to file and proceed to settle an account in his representative capacity. The petitioner alleges a status as a creditor of the estate and of the administrator in his fiduciary capacity, although, confessedly, the consideration upon…