
    Alfred Fatman, Resp’t, v. Solomon J. Fatman, Individually and as Ex’r, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 2, 1892.)
    
    1. Depositions—Examination to enable plaintiff to pbepabe complaint.
    Allegations in an affidavit that defendant is executor of the father of the parties, who directed the executor to represent him in and to continue a copartnership; that the inventory showed the interest in the partnership to be $275,900; that defendant has refused to render an account and pay plaintiff his share; that plaintiff has no knowledge, except the testimony of defendant and the partners, as to the terms of the partnership, nor who were the partners of deceased at the time of his death, nor the result of the operations of the firm, nor what changes have taken place in its membership, nor how they have affected the interest of the estate in the firm, nor what is left of the trust fund, and that defendant’s testimony is necessary to plaintiff in the prosecution of the action and to discover the names of other defendants, is sufficient to entitle plaintiff to an order for the examination of defendant to enable him to frame his complaint.
    3. Same—Affidavit.
    In such a case it is not necessary that the affidavit should state a complete cause of action; it is sufficient that the nature of the action is stated and the substance of the judgment demanded.
    
      3. Same—Accounting—Common pleas.
    An action for an accounting by an executor may be maintained in the court of common pleas, where judgment is sought establishing and adjudicating the rights of plaintiff in real as well as personal property.
    
      4. Same—Limitation.
    It is no objection to the granting of an order for examination that the statute of limitations would probably be a bar to the action; as the statute is always <an affirmative defense, and it cannot be presumed that it will be pleaded.
    5. Same—Scope of examination.
    The scope of the examination should not be limited by the order where it is to be taken before a judge and not before a referee.
    Appeal from an order of this court denying a motion to vacate or modify the order made herein for the examination of the defendant to enable the plaintiff to frame his complaint in this action.
    The facts are stated in the opinion.
    
      J. A. Shoudy, for app’lt; William J. Hardy, for resp’t.
   Gtegerich, J.

Joseph Fatman, father of both plaintiff and defendant, died in October, 1869. lie was then a member of the firm of Fatman & Co., of New York city. By his will he directed his executor to represent his interests in said copartnership, and to all intents and purposes carry out said copartnership in the same manner as though the testator were living during the period provided for in the articles of copartnership, and that the said partnership should continue and be prosecuted by the remaining partner and his executor.

The defendant became the sole executor under his father’s will, and in January, 1870, about three months after his father’s death, filed an inventory showing personalty of the appraised 'value of $327,797.29, including the testator’s interest in the firm of Fat-man & Co., which was appraised*at $275,000.

The plaintiff demanded from the defendant an accounting and the payment to him of his share of his father’s estate, but the defendant refused to comply with the demand, and the plaintiff now brings this action for the purpose of obtaining a judgment establishing and adjudicatingthe rights of the plaintiff in thereal and personal estate of his father, and requiring and directing the defendant, as sole executor and trustee of said Joseph Fatman, deceased, to file and judicially settle his account and to pay over to the plaintiff his share in the proceeds of the said estate as a legatee of the said testator.

Upon the affidavit of the plaintiff setting forth these facts and other facts and circumstances, which will hereinafter more fully appear, an order was made for the examination of the defendant to enable the plaintiff to frame his complaint Thereafter the defendant moved to vacate, set aside or modify such order, which application was founded upon his affidavit, wherein he states that the firm of Fatman & Co. was dissolved by his father’s death; that its affairs were liquidatéd by Louis Fatman,. as surviving partner; “that all of the assets of said firm and of both partners were used to pay the debts of said firm, and that after all had been applied, left over half a million of indebtedness unpaid; ” that in 1869 a new firm composed of the defendant individually, and the said surviving partner, Louis Fatman, was organized for one year; that it received none of the assets of the former firm and had no connection with its business; that in 1870 “ a new firm of Fatman & Co.” was organized, composed of Louis Fatman, Solomon J. Fatman, Morris Ranger and Solomon Ranger; that about 1882 Morris Ranger retired and about 1883 Louis Fatman died, and the firm is now composed of the remaining members; that none of the assets of the original firm of Fatman & Co. ever came into the hands of this firm; that about the year 1877 all of the assets of Joseph Fatman, together with his interest in the assets of the original firm of Fatman & Co., had been collected by the defendant and said Louis Fatman, and paid out upon account of the indebtedness of his said firm; that since 1877 no assets whatever of the said Joseph Fatman have come into his hands nor those of said Louis Fatman, nor have any such assets ever come into the hands of either of said “ subsequent firms of Fat-mail & Co.” and that the plaintiff’s right to demand an accounting accrued upwards of twenty years ago.

The defendant also alleged that in July, 1890, the plaintiff applied to the surrogate for an order directing him to render an account in the estate of said Joseph Fatman and that the application was denied upon the ground that the plaintiff’s right to demand such an accounting had long since expired. The statemente of the defendant as to the alleged result of the proceedings had in the surrogate’s court are denied by the attorney for the plaintiff, who in an affidavit alleges that they were discontinued before any determination was reached therein.

The motion made by the defendant was denied, from which determination he has appealed, and thus there is presented for review the validity of the order in question.

It is insisted by the defendant that the affidavit was wholly insufficient to justify an order for the examination of the defendant. There is no force in this contention. The affidavit upon which the order was made contains, in addition to the matters above stated, the statement that the plaintiff has no knowledge nor any source of information, excepting the testimony of the defendant and the other copartners of said Joseph Fatman, deceased, as to what were the terms, provisions and conditions of the said articles of copartnership, oral or written; nor as to who were copartners of the said Joseph Fatman in the said firm at the time of his death, nor what was the extent of the interest of the said Joseph Fatman in the assets of the said firm; nor what has been the result of the operations of the said firm since the death of the said Joseph Fatman as affecting the latter’s interest in the said assets; nor what changes, if any, have taken place in the membership of the said firm since the death of the said Joseph Fatman; nor in what respect such changes in said firm have affected the said interest of the said Joseph Fatman, deceased, and of his executor and trustee in the assets of said firm; nor what, if anything, is now left of the trust fund created by the said provisions of the said will in the assets of said firm, nor any of the other facts or incidents connected with the administration of his said trust by the said executor and trustee under the said will.

It was further stated that the deposition of the defendant is material and necessary to the plaintiff in the prosecution of this action, and that the plaintiff has no means of ascertaining anything whatsoever concerning the said t rust under the said will, or its administration, or concerning any part of the estate of said testator or its administration, and that this discovery is necessary to enable the plaintiff to discover the names of other defendants and to frame his complaint in this action. From these statements and others as they are contained in the affidavit, the plaintiff is clearly entitled under the authorities to an order for the examination of the defendant, Glenney v. Stedwell, 64 N. Y., 120; Heishon v. Knickerbocker Co., 45 Super., 54; Raymond v. Brooks, 59 How., 383 ; Miller v. Kent, id., 321; Manley v. Bonnell, 11 Abb. N. C., 123; Goldberg v. Roberts, 12 Daly, 339; Burt v. Oneida Com., 21 W. Dig., 342 ; Davis v. Stanford, 37 Hun, 531; Talbot v. Dorin Co., 30 St. Rep. 558; 18 Civ.Pro., 304 ; 9 N. Y.Supp., 478; Carter v. Good, 57 Hun, 116 ; 32 St. Rep., 501, and the plaintiff is entitled thereto, especially in view of the fact that he is a cestui que trust, and entitled to a full and truthful disclosure affecting the corpus of the estate. Carter v. Good, supra.

The second objection to the order is, that the affidavit fails to show that the plaintiff has a cause of action, either legal or equitable. Even assuming for the purposes of the argument that this is so, the general rule does not apply to a case of this character. Garter v. Good, supra. But it is not necessary that the affidavit should state a complete cause of action; it is sufficient if the nature of the action is stated and the substance of the judgment demanded. Frothingham v. Broadway R. R. Co., 9 Civ. Pro., 304, 314, Van Brunt, J.; Vidette v. Dudley, 24 St. Rep., 20; Heishon v. Knickerbocker Co., supra.

The moving papers in the case at bar contain these prerequisites.

The third objection is, that the examination of the defendant is not necessary to enable the plaintiff to frame bis complaint. A question similar to the one now presented by this objection was raised by the first objection, which has been already considered and disposed of, and the answer thereto might suffice for a complete answer to the objection now raised. But in passing upon the precise point involved it is well to consider that while the plaintiff may be entitled to a share of his father’s estate, he is not in a condition in which he can legally state his case entitling himself to any relief of that description. Eor the information requisite for that purpose he is wholly dependent upon the defendant, who, it seems, within three months after the testator’s death and before his inventory was filed, became a member of the firm, which, by the terms of his father’s will, be was directed to continue and preserve, and without the information there is reason to believe that the action could not be placed in the legal form adapted to the relief which the plaintiff is entitled to upon the facts as he may ultimately be able to establish them in the suit. The plaintiff is, therefore, entitled to the order to enable him to prepare a complaint. Davis v. Stanford, supra; Raymond v. Brooks, supra; Tucker v. Mather, supra; Heishon v. Knickerbocker Co., supra.

This brings us to the next objection, that it is doubtful whether the plaintiff could maintain an action for an accounting in this court. If the action related solely to an accounting as to the personalty, doubts might be entertained, in view of the intimations given by the judges who delivered the opinion of the court in the cases cited by the appellant, Hard v. Ashley, 117 N. Y., 606; 28 St. Rep., 601; Chipman v. Montgomery, 63 id., 235, whether, in the face of an objection properly taken thereto, this court could entertain jurisdiction of the action. But by referring to the affidavit of the plaintiff it will be seen that this action is brought “for the purpose of obtaining a judgment establishing and adjudicating the rights of plaintiff in certain real and personal property, being the estate of one Joseph Eatman, deceased.”

The. statements and denials of the defendant contained in his affidavit furnish np reason why he should not be examined at the instance of the plaintiff. Olney v. Hatcliff, 37 Hun, 286; Davis v. Stanford, supra.

Notwithstanding the long period of time that has elapsed since the alleged right of action is claimed to have accrued, the Statute of Limitations is always an affirmative defense, and it cannot be presumed, that the same will be pleaded. Furthermore, the facts to be brought out may themselves show that such statute could not be successfully interposed as a defense.

The scope of the examination of the defendant should not be limited, as the order provides it is to be taken before a judge and not a referee. Burt v. Oneida Co., supra; Hutchinson v. Lawrence, 29 Hun, 450.

The order appealed from should be affirmed, with costs.

Daly, Ch. J., and Bisciioff, J., concur.  