Supreme Court, April, 1921.

[Vol. 115. such circumstances, that the defendant would have been entitled, if innocent, to a divorce."

If these charges are established the plaintiff and defendant will find themselves in the same position as before the commencement of the action, except that they will have had their day in court, or perhaps several days, as to matters affecting them, and this all means time, labor and the expenditure of money. The children must be maintained and the defendant must be maintained and supported in a manner corresponding to her rank and position and the fortune of her husband. We must look to all the circumstances of the particular case, in order to award what is fair and just between the parties, for no two cases are alike. The charges against the defendant are very serious and momentous and, if sustained, the consequences would be very serious to her future, even if she should succeed in sustaining the charges against the plaintiff. This case is of great importance to her. It is her right to make a vigorous effort to meet the proof that may be presented against her and to present her defense, not only for herself, but for the interests of her children. Aside from these considerations, there is one person in this case who is so young and innocent as not to understand what this action is all about and will not understand until he comes to an age of understanding. If plaintiff is successful against the child, the child will bear a stain that cannot be erased and for which he is not responsible. The plaintiff seeks to do that which he believes is his duty to himself and his children. The plaintiff having challenged the paternity of the child, the defendant comes to its protection and to the defense of its legitimacy. This is her duty if she is right in her claim. She vigorously champions the child's cause and this is expected from any mother.

Misc.]

Supreme Court, April, 1921.

Our law in its wisdom provides for the care and protection of those who cannot protect themselves, especially infants and those of tender years. There is such an infant in this case. The infant is made a defendant and its paternity is questioned. The courts are charged with the duty of protecting it. In this case the infant is represented by an honored and eminent member of the bar, who will protect the infant's interests and give the best that is in him, bringing into play all the learning and ability that the law expects from one placed in such a position of trust. The interests of the defendant and of the infant in this case are to a great extent the same. The contest means much and no mistake should be made. It should not be permitted to be made. Litigation is expensive and troublesome; and such litigation as is anticipated in this case means the bringing of many witnesses from many places and a long and protracted trial. It should not be said that all were not heard that should have been heard. All this means money and time, labor and effort. Proper provision must be made to meet the conditions presented. I believe the counsel fee should be allowed in the sum of $35,000, and $12,500 be allowed for expenses. During the pendency of the action the defendant and the children, and this includes the infant herein attacked, must be provided for. The children, except the infant herein, are of sufficient age to determine with whom they desire to reside during the pendency of the action. Their preference should control in the circumstances as now presented. While the children are with the mother or in her charge, she must provide for their schooling and other necessary expenses. I believe to meet the conditions, the alimony should be allowed in the sum of $7,500 per month.

Order may be presented in accordance herewith

Surrogate's Court, New York County, April, 1921. [Vol. 115.

and when signed the stay vacated and the trial proceed before the learned referee at a time and place to be agreed upon between the parties, and if the parties cannot agree, the learned referee may fix the time and place.

Ordered accordingly.

Matter of the Estate of HERMAN APPEL, Deceased. (Surrogate's Court, New York County, April, 1921.)

Discovery - when cannot be used in Surrogate's Court to collect a debt — when order to attend inquiry will not be granted.

A discovery proceeding cannot be used in the Surrogate's Court to collect a debt, and where it is apparent that delivery of specific property cannot be directed, an order to attend the inquiry will not be granted.

APPLICATION for an order of discovery.

Kornblueh & Hunter, for petitioner.

COHALAN, S. This is an application for an order in a discovery proceeding. It plainly appears from the petition that the petitioner is not entitled to the order, because a discovery proceeding in the Surrogate's Court cannot be used for the purpose of collecting a debt. Where it appears on the face of the petition that delivery cannot be directed, an order to attend an inquiry should not be granted. This precise question was presented and decided in Estate of Denham, N. Y. L. J., June 23, 1917, where this court said:

"The petitioners in the discovery proceeding admit in the brief filed in their behalf that the object of this inquiry is to obtain information concerning property, (a chose in action) which should be included

Misc.] Surrogate's Court, New York County, April, 1921.

in the inventory and appraisal.' It has been repeatedly held and is still the law that a discovery proceeding is designed for the purpose of discovering specific property or specific money in coin and bank bills belonging to the deceased and withheld, on which discovery they may be ordered delivered summarily, but the provisions do not contemplate the collection of a debt by summary process.' (Matter of White, 119 App. Div. 140.) Where it is admitted that the object of the proceeding is to secure information about property which is incapable of delivery, an examination is unnecessary and the proceeding should end. A discovery proceeding in this court cannot be used for the purpose of ascertaining the discovering evidence to be used in another action or proceeding. Motion to vacate order granted." Upon appeal this disposition was affirmed. Matter of Denham, 180 App. Div. 935. See, also, Estate of Soule, N. Y. L. J., March 15, 1921. The application must, therefore, be denied.

Application denied,

Supreme Court, April, 1921.

[Vol. 115.

PEOPLE OF THE STATE OF NEW YORK ex rel. HARRY B. WEATHERWAX, Petitioner, v. JAMES R. WATT, as Mayor of the City of Albany, Defendant.

(Supreme Court, Albany Special Term, April, 1921.)

Mandamus when writ will issue upon the application of a private citizen requiring the mayor of a city to enforce section 26 of the Transportation Corporations Law Transportation Corporations Law, § 26-Second Class Cities Law, § 54Public Service Commissions Law, §§ 48, 57- Penal Law, § 29.

Where a clear legal right exists and there is no other adequate remedy, a writ of mandamus may issue in the discretion of the court. (P. 148.)

A mandamus proceeding to enforce a right in which the general public is interested, to wit, that the streets of a city shall remain unobstructed and unencumbered, may be maintained by a citizen and resident of the city. (Pp. 127-134.)

Where it is made to appear that in the city of Albany, for at least six weeks, more than 500 motor vehicle lines of the character described in section 26 of the Transportation Corporations Law, which in the interest of the public welfare prohibits' bus lines or any vehicles carrying passengers at a rate of fare of fifteen cents or less for each passenger within the limits of the city, have been and are now being unmolestingly operated upon the public streets of the city without the consent of the local authorities and without a certificate of public necessity and convenience from the public service commission, as required by said section of the Transportation Corporations Law, and it further appears the mayor of the city, one of whose duties under section 54 of the Second Class Cities Law is to see that the laws of the state are executed, has openly and publicly announced his positive refusal to perform such duty, a writ of mandamus, upon the application of a citizen of the state who is also a resident of the city, will be granted requiring the said mayor to direct the commissioner of public safety, who is neither a proper nor necessary party to the present proceeding, to enforce by action of the police department of the city, the provisions of section 26 of the Transportation Corporations Law. (Pp. 121-123, 150-151, 155.)