Opinion
July, 1933.
Order confirming report of official referee and judgment entered thereon reversed on the law and the facts and a new trial granted, costs to abide the event. This is a judgment creditor's action in which the plaintiff seeks payment to it of income of a testamentary trust which accrued to the beneficiary, the judgment debtor, prior to his death but which was not applied to his use pursuant to the terms of the trust. We are of opinion that proof of the death of the beneficiary, leaving an unexpended surplus, makes out a prima facie case in favor of the plaintiff and that the burden was then upon the respondent to go on with the proof. Lazansky, P.J., Kapper, Hagarty, Carswell and Tompkins, JJ., concur.