In re Providing the Last Will & Testament of Tifft

Nash, J.: The commission was not properly executed. The witness, as directed by the interrogatories, having examined what purported to be volume 1, Testimony in Matter of James W. Tifft, reported by Charles H. Bailey, stenographer, from pages 611 to 621 inclusive, stated: “My recollection is refreshed from these minutes as they were then reported by me, but I cannot now remember the things reported herein in detail.” These pages of the testimony in Ma ter of Tifft (611-621) purported to be a copy of .stenographic notes of things said and done by Mr. Tifft, sienographically taken by the witness. After stating that her recollection was refreshed, the witness said: “I believe this 'to be a correct copy of my transcript which was handed in to Mr. Moot and inserted in this record by Mr. Bailey,” and then she indorsed the several pages of the testimony certified by the commissioner as exhibits. The witness should have been required to state whether the testimony shown to her refreshed her recollection as to the things which Mr. Tifft said and did in her presence, of which she took stenographic notes, and if so, then the facts which she could recall should have been stated or read from the minutes shown her and embodied in her answers to the interrogatories. (Marcly v. Shults, 29 N. Y. 346.) We think that the contestants should have been permitted to have obtained evidence in proper form, and, therefore, the order denying contestants’ motion for an order directing that a further commission issue should be reversed. All concurred. Order reversed, without costs, and matter remitted to Surrogate’s Court for proper action.