Matter of Rose

• Decision Date: 03 August 1951
• Citation: 201 Misc. 470
• Parties: In the Matter of The Estate of Henry P. Rose, Deceased.
• Court: New York Surrogate Court

201 Misc. 470

In the Matter of The Estate of Henry P. Rose, Deceased.

August 3, 1951.

Michael J. McMorrow for Oliver F. Storer, as administrator of the estate of Marion E. Rose, deceased, petitioner.

Charles J. Knoell and Clark B. Bassett for Harry E. Rose, as administrator of the estate of Henry P. Rose, deceased, respondent.

BUSCAGLIA, S.

This is a proceeding for the revocation of letters of administration heretofore issued by this court to Harry E. Rose, the petition also asking that letters of administration be issued to the petitioner.

The decedent herein and his wife, Marion E. Rose, were residents of the city of Tonawanda. On February 10, 1951, they went to a winter resort in Cattaraugus County. They rented a room at an establishment known as the Saddle House and that evening were to meet some of their friends there. The undisputed evidence shows that they retired to their room at about 6:00 P.M. Their companions waited for them in the restaurant section of the hotel. After a considerable period of time had elapsed, one of their friends went and knocked on the door and, receiving no response, went around to the window and upon looking in saw that the room was full of smoke or fumes. Thereupon, the door was broken down and the unconscious couple removed. Their bodies were placed on tables in the restaurant and their friends and other persons present began administering artificial respiration.

Shortly thereafter, Dr. Otis Case, a practicing physician in the city of Salamanca, arrived at the hotel in response to a call. At the hearing he testified substantially as follows: He examined both Mr. and Mrs. Rose and from the history given him, gave a diagnosis of monoxide poisoning. He took their pulses, applied his stethescope and administered adrenalin. He testified that he found life in both parties and said that Mr. Rose died at approximately 10:00 P.M. and Mrs. Rose at 11:00 P.M., and he so signified on the certificate of death. On cross-examination the doctor stated that gas poisoning such as this usually causes death within a short period. He recalled telling the couple's friends that both cases were hopeless and that if he had arrived earlier he still would have been able to do nothing to help.

The fire chief of the city of Salamanca testifying for the petitioner said that he had been in attendance with the fire department's respirator and recalled the doctor pronouncing Mr. Rose dead an hour earlier than his wife.

The respondent then called several witnesses, friends of the deceased couple, who were present in the Saddle House on the fatal evening. These witnesses were as equally disinterested as...