Opinion
Argued February 1, 1881
Decided February 8, 1881
Albert Moot for appellant. Abram Thorn for respondent.
This was a referable action. Its primary purpose was to obtain an accounting of the rents and profits of real estate, owned in common by Silas and Seth Harrington, received by the latter, and of personal property belonging to them jointly, alleged to have been fraudulently appropriated by Seth Harrington, the defendant Nancy Bruce, and her former husband Alexander Bruce, in pursuance of a conspiracy between them, in fraud of the rights of Silas Harrington. The defendant is the executrix and the legatee and devisee of Seth Harrington; and the complaint alleges that she has now in her hands $15,000 of the personal estate of John J. Harrington, deceased, which belonged equally to Silas and Seth Harrington, one-half of which now belongs to Silas, and demands, among other things, an accounting of the rents and profits of the real estate received by Seth Harrington, and of the personal estate left by John J. Harrington which came to his hands. The allegation of a fraudulent conspiracy to deprive the plaintiff of his rights in the property of his father does not change the character of the action. The pleadings show a case authorizing the court to refer the action, and its order is not reviewable here. ( Martin v. The Windsor Hotel Co., 70 N.Y. 101.)
The appeal should be dismissed.
All concur, except RAPALLO, J., absent.
Appeal dismissed.