Opinion
May 20, 1927.
Appeal from Supreme Court of Albany County.
Frost, Watson, Cass Looby [ J.S. Frost of counsel], for the appellant.
John S. Wolfe [ Borden H. Mills of counsel], for the respondent.
The respondent has been appointed administrator of the estate of the decedent who was a veteran of the Civil War, and who lost his eyesight during the war and who for many years lived with and was cared for by the appellant, Cora Gathen, his daughter. The respondent obtained the ex parte order for the examination of the appellant upon his affidavit that the decedent was the recipient of a large pension from the government for many years and that he had other property, real and personal, including a bank account in the joint names of the decedent and the appellant, and that the appellant transacted all of decedent's business. He alleged in such affidavit that the appellant had never made any accounting and refused to make any accounting and "further refuses to give any information by which the facts can be learned what disposition she has made of his accumulated estate." The respondent further alleges in his affidavit as follows: "An action is contemplated to make her answer to her trust in her fiduciary capacity and her other wrongful conduct in the handling of his estate. It is necessary to take her deposition to enable this deponent to obtain information to enable him to have a complaint drawn."
The respondent does not state that an action is about to be commenced. He says: "An action is contemplated." Even if this were sufficient, the respondent's contemplated action is necessarily an action in equity for an accounting. His affidavit sets forth facts sufficient to furnish the necessary allegations in such a suit for an accounting. "The demand for relief is not a vital part of the complaint in an equitable action." ( Cross v. Bishop Oil Corporation, No. 1, 218 App. Div. 632, 635.) A plaintiff must establish a right to an accounting by interlocutory judgment before he may examine a party on the account. ( Del Genovese v. Del Genovese, 149 App. Div. 266; Brown v. Brown, 203 id. 658; De Rapalie v. Gavin, 209 id. 883.) Therefore, to frame a complaint in this action for an accounting no examination of the appellant is necessary. ( Teall v. Roeser, 206 App. Div. 371, 373.)
The order should be reversed on the law, with ten dollars costs and disbursements, and the motion to vacate should be granted, with ten dollars costs.
COCHRANE, P.J., VAN KIRK, HINMAN, DAVIS and WHITMYER, JJ., concur.
Order reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.