
    John H. Riley, as Executor, etc., of David Lawton, Deceased, Respondent, v. James McGee, Appellant.
    First Department,
    January 22, 1915.
    Executors and administrators — examination of surviving partner to frame complaint — action to recover assets — prior release toy testator.
    Where the will of a deceased partner bequeathed his share in the firm assets to the plaintiff’s testator and the latter conveyed the interest in the partnership to the surviving partner, executed a settlement agreement and released the surviving partner from accounting to the estate of the deceased partner, the executor of the legatee, after his death, is not entitled to examine the surviving partner in order to frame a complaint in an action brought toy him as executor to recover assets without first having the conveyances set aside in an appropriate action. This, because the personal property of the deceased partner did not vest in his legatee’s executor, tout in his own personal representatives for the purpose of administration.
    Appeal by the defendant, James McGee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of December, 1914, denying his motion to vacate an order for his examination obtained to enable the plaintiff to frame his complaint.
    
      Philip S. Dean, for the appellant.
    
      Thomas O’Rourke Gallagher, for the respondent.
   Laughlin, J.:

The plaintiff as executor of David Lawton, deceased, claims that he has a cause of action against the defendant to recover assets of the estate, but that he requires an examination of the defendant to ascertain “the exact total” of the personal property of which Morris Lawton, the son of the testator, died seized, and “the increase of same” and the income of the “ properties ” of plaintiff’s testator to enable him to frame a complaint; and he shows by affidavit that he wishes to ascertain by the examination what assets were owned by a copartnership between the defendant and said Morris Lawton, which he alleges existed down to the death of the latter, and what bank accounts the firm or its members had either jointly or severally, and the balances shown thereby, and the real estate held by them jointly and severally, and the interest of each therein and the income thereon, and to trace the income from the death of Morris Lawton to the death of plaintiff’s testator and “ any and all other facts material to the issue.”

We áre of opinion that the plaintiff failed to show that he was entitled to the examination. He merely showed that the defendant and Morris Lawton, who died on the 24th of October, 1907, leaving his father his sole heir at law and next of kin, were copartners, and as such had accumulated five parcels of real estate, concerning which there was no accounting between them; that after the death of Morris Lawton and on the 11th day of December, 1907, the defendant “ by trick and device and fraudulent representations ” induced plaintiff’s testator and his wife “to sign over” to defendant the five parcels of real estate which the defendant and Morris Law-ton held as copartners, “ together with two other pieces ” and to execute an agreement to the effect that there was nothing due and owing from the defendant to the estate of Morris Lawton; that the deeds of conveyance and agreement which were so executed by the plaintiff’s testator “are the basis of another action now pending in the Supreme Court, of this county, brought by the heirs to remove a cloud on title; ” that the defendant ever since said conveyance to him has managed and controlled the real estate and has had possession " of all of the personalty,” and that the plaintiff has no knowledge with respect to the extent or value of the same. No partnership between the plaintiff’s testator and the defendant is shown or claimed. If on any theory plaintiff has a cause of action against the defendant for an accounting, he would not need or be entitled to an examination to frame a complaint. (Matter of Gardner, 124 App. Div. 654; Pierce v. McLaughlin Real Estate Co., 121 id. 501.) But plaintiff’s counsel insists that this is not a suit in equity for any purpose. With respect to the copartnership between defendant and Morris Lawton, the property rights of the parties should be determined in an action for an accounting brought by or against the personal representative of Morris Lawton. In other words, the plaintiff as the executor of the father of Morris Lawton is not vested with any cause of action for an accounting with respect to that copartnership. The assets which the plaintiff seeks to recover, with the exception of the income therefrom, arising subsequent to the conveyance, were conveyed to the defendant by the plaintiff’s testator; and it appears that at the same time a settlement agreement was executed, by which the plaintiff’s testator, in effect, released the defendant from accounting to the estate of his son. It is manifest that neither the property thus conveyed, nor the income therefrom since the conveyances, can be recovered until the conveyances are set aside in an appropriate action therefor. It is not shown that any of the personal property of the plaintiff’s testator was assigned to the defendant; but it appears to be claimed that some of the personal property of Morris Lawton came into the possession of the defendant. That property, however, did not vest in the plaintiff’s testator, but in the personal representative of Morris Lawton, deceased, for the purpose of administration, and the plaintiff, therefore, would have no cause of action therefor; and if he could maintain a cause of action therefor, it could not be maintained without setting aside the settlement agreement. It is evident, therefore, that the plaintiff fails to show that there are any assets of his testator in the hands of the defendant which he is entitled to recover in this action.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination granted, with ten dollars costs.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  