
    SUPREME COURT.
    Anna Moffat, respondent, agt. William Moffat, appellant.
    
      Executor — Accounting—Where an executor has finally accounted befoi'e a surrogate and been discharged, how and under what circumstances he can be-required to account further — Appeal — When order appointing a referee appealable.
    
    Where an executor has finally accounted before the surrogate, the heirs - and legatees of the deceased (the plaintiff’s assignor being one of them) having executed a general release to the executor, and thereupon a decree having been entered judicially settling his accounts and discharging him as such executor:
    
      Held, that the executor, having accounted before the surrogate, could not,. until his accounts so rendered were impeached, be required to account further:
    
      Held, further, that the burden of impeaching the accounts rendered, and of showing that the defendant, as executor, &c, then had in his hands money or property of the estate not accounted for is on the plaintiff, and until that burden is met, and an interlocutory judgment is rendered in the-plaintiff's favor on that issue, the executor cannot properly be required to-account for any purpose. The impeaching facts are to he proved by the same species of evidence as any other fact.
    ' The defendant can be called as a witness by plaintiff and compelled to testify. as to whether he'had any property in his hands as executor, &c., not embraced in his accounts rendered, and to specify the property; but he cannot be compelled to render an account for the purpose of furnishing . ' evidence in the plaintiff’s behalf, upon the primary issue whether he is liable to account.
    Whether, upon interlocutory judgment being rendered against the executor upon that issue, he can be compelled to account generally, or only in respect to matters not embraced in his accounts before the surrogate, qumre.
    
    -An order of special term appointing a referee to take the account of an executor, who has already accounted before the surrogate, for the information of the court, affects a substantial right, and is appealable to the general term.
    
      Fifth Department, General Term,
    
    
      January, 1886.
    
      Before Smith, P. J., Barker, Haight and Bradley, JJ.
    
    Appeal from a special term order appointing a referee to talce 'tbe account of tbe defendant, as executor, &o., of James Moffat, deceased, for tbe information of tbe court, and from an order ■ denying tbe defendant’s motion to open or modify tbe first mentioned order.
    
      George Wadsworth, for appellant
    
      M A. Whitney, for respondent
   Smith, P. J.

Tbe complaint in tbis action alleges, in substance, that in April, 1863, tbe defendant, wbo was named as -executor in tbe last will of James Moffat, deceased, took out letters testamentary, and entered upon sucb executorship, and ‘Continued to act therein until J une, 1880, when be made and filed with tbe surrogate bis accounts as sucb executor, and asked for a final accounting. That said accounts were duly verified, ;,and they purported to contain all tbe acts and doings of tbe defendant, as such executor, and to be a true and correct statement of the then condition of said estate, and the sums and property then remaining in his hands subject to distribution among the heirs, next of ldn and legatees of the deceased entitled thereto. That one of said heirs and legatees was Edward Moffat, the plaintiff’s assignor, to whom, as such heir and lega- ■ tee, there appeared by the said accounts, to be due, the sum of $3,879:75; that said Edward, relying upon the truth of said accounts so filed, and believing them to be accurate, was induced thereby to consent to such final accounting upon the basis of the said accounts, and in order that a decree might be entered, he, with other heirs and legatees of said deceased, executed a general release to the defendant as such executor, and thereupon a decree was entered on the 17th of June, 1880, ■judicially settling said accounts, and discharging the defendant as such executor. The complaint also alleges, that the said accounts were not truthful and correct; that they did not account for all the moneys and property in which the said Edward was ■ entitled to a distributive share, and that, in fact, the said defendant, as such executor, &c., then had in his hands in money and good securities, subject to such distribution, the further ■ sum of about $43,684.10, which he failed to account for, and of which the said Edward was ignorant when he consented to such accounting and executed said release. The relief demanded is a judgment, setting aside and vacating the final decree of the surrogate discharging the defendant as executor,. &c., and vacating the said release, and ordering him to account as such executor, with costs.

The answer of the defendant alleges that his said accounts were true, denies that the defendant had in his hands any money or property subject to distribution which he failed to ■ account for, and sets up the settlement, release and decree, and paj^ment in full in accordance therewith. Upon this state of the pleadings it seems, to us, that the order requiring the defendant to account is premature. He has accounted before the-surrogate, and not until his accounts so rendered are impeached*. can lie be required to account further, even according to the theory of the complaint. The burden of impeaching the accounts rendered, and of showing that the defendant, as executor, &c., then had in his hands money or property of the estate not accounted for, is on the plaintiff, and until that burden is met, and an interlocutory judgment is rendered in the plaintiff’s favor on that issue, the defendant cannot properly be required to account for any purpose. The impeaching facts, so alleged, are to be proved by the same species of evidence as any other fact Undoubtedly, the defendant can be called as a witness by the plaintiff, and compelled to testify as to whether he had any property in his hands as executor, &c., not embraced in his accounts rendered, and to specify the property (and for the purpose of the plaintiff, upon the preliminary issue, a single item would probably be sufficient); but the defendant cannot be compelled to render an account for the purpose of furnishing evidence in the plaintiff’s behalf, upon the primary issue whether he is liable to account. That would be trying the case in an order the reverse of the true one.

Whether, upon interlocutory judgment being rendered against the defendant upon that issue, he can be compelled to account generally, or only in respect to matters not embraced in his accounts before the surrogate, is a question that need not now be discussed, and we do not pass upon it

As the orders affect a substantial right, they are appealable.

Each of the orders appealed from should be reversed. Ten dollars costs of this appeal, and disbursements, allowed to the appellant, in one case only.

Baker, Haight and Bradley, JJ., concur.

So ordered.  