Opinion
January 5, 1916.
Miller Stephens [ Friend H. Miller of counsel], for the appellant.
David M. Dean [ William Nelson Noble of counsel], for the respondent.
The plaintiff is the administrator of the estate of Gilbert S. Higgins, deceased, and brings this action to compel the defendant to account for his dealings with the property of the decedent during the time that the defendant was acting for the said Gilbert S. Higgins under a power of attorney. The plaintiff alleges a cause of action, necessarily upon information and belief as to many of the matters, among them that the defendant received an assignment of a certain bond and mortgage from the said Gilbert S. Higgins, during his lifetime, absolute in form but in fact coupled with a trust. The learned court at Special Term granted the plaintiff's motion to compel the defendant to submit to an examination before trial. The defendant moved the Special Term for an order vacating the order, or modifying the same, and this motion being denied appeal comes to this court. The defendant urges as reasons why his motion should have been granted that the plaintiff is not prosecuting this appeal in good faith, apparently oblivious to the fact that the plaintiff is not prosecuting an appeal at all but is merely standing upon his rights under the order.
The defendant's contention on the question of the plaintiff's good faith is based upon an affidavit, submitted to the Special Term, to the effect that the defendant claims to have discovered a will made and published by the decedent, by the terms of which the defendant is made one of the executors of the estate. But this alleged will has not been probated; it may never be probated. The complaint in the action alleges, and the answer admits, that the said Gilbert S. Higgins died intestate, and, until the will has been probated, this undenied allegation of the complaint must be accepted and acted upon as true. (Code Civ. Proc. § 522.) Upon the pleadings the plaintiff is entitled to the order which has been granted, and to suggest that he is not acting in good faith because the defendant claims to have discovered a will, is hardly fair. The plaintiff is the administrator of the estate; he is acting in a representative capacity, and it is his duty to protect and preserve the estate so long as he is acting in the official capacity. When the will is probated, if it ever is, the administration will terminate, but until that event the duties of the plaintiff are not changed, and he ought not to be charged with bad faith in doing just what it is his duty to do under his letters.
The defendant urges that the order for his examination should be vacated because the moving affidavits are made upon information and belief; but we are of the opinion that the rule, which is applied where evidence of the existence of a cause of action is required, is not necessary under the facts of this case, where the defendant has occupied a fiduciary relation to the plaintiff's intestate, and where he should be prepared to reveal the information which is essentially within his own knowledge, and which cannot be presumed to be known to the plaintiff. There are certain fundamental differences between an examination of an adverse party after issue joined, to obtain evidence for use at the trial, and an examination in order to frame a complaint. Decisions as to the former are not necessarily authoritative as to the right to the latter. ( Matter of Gardner, 124 App. Div. 654.) Boskowitz v. Sulzbacher, No. 1 ( 121 App. Div. 878) and Mitchell v. Central Mines Development Co., Limited (124 id. 325), were both cases where the examination was sought to enable the plaintiff to frame a complaint, and the rule in such cases is undoubtedly as suggested by the defendant, but the purpose of examination after issue joined is to develop the truth, and the courts have wisely swept away all petty restrictions upon the full use of this privilege, and the rule is well established that where the moving papers comply with the statute the party is entitled to the order as a matter of law. (Code Civ. Proc. § 870 et seq.; Cherbuliez v. Parsons, 123 App. Div. 814; Stevens v. Weygandt, 163 id. 543, 544, and authorities there cited.)
The order appealed from should be affirmed, with ten dollars costs and disbursements, and the appellant should be directed to appear at a day certain and submit to examination.
Order unanimously affirmed, with ten dollars costs and disbursements, and the appellant directed to appear before the same referee, for examination, at the same place, on January 18, 1916, at ten o'clock in the forenoon.