In re the Estate of Dwyer

Order of the Surrogate’s Court, New York County, entered June 1, 1976, denying the petition to compel an accounting, unanimously affirmed,' without costs and without disbursements. The petitioner is a national of the Federal Republic of Germany (West Germany). Many years ago, desirous of avoiding decrees of the National Socialist Party with respect to assets abroad, the petitioner and his sister-in-law sought to divest themselves of such assets in the United States by making an absolute gift to a person in the United States who was the secretary to an attorney who advised the petitioner. Petitioner now seeks an accounting by the executor of the donee’s estate. Petitioner has thus far been unsuccessful with respect to his claim. (See Schmieder v Hall, 421 F Supp 1208, affd 545 F2d 768, and a petition for certiorari is pending.) In order for the petitioner to be entitled to an accounting, he must in this instance show that he is a creditor (SCPA 103, subd 11). He bottoms his position as a creditor on the basis that a claim has been made against him by the United States for gift taxes in connection with the above-mentioned transaction. At the argument of this appeal, the respondent submitted an affidavit with official documents to the effect that the Internal Revenue Service has released any Federal tax lien. "For the *773purpose of sustaining a judgment, incontrovertible, documentary evidence dehors the appeal record may be received by an appellate court”. (Kirp v Caleb’s Path Realty Corp., 19 AD2d 744, 745.) The documentary evidence is received, and based thereon, the order is affirmed. Concur — Kupferman, J. P., Birns, Lane and Markewich, JJ.