
    In the Matter of the Petition of Charles E. O’Connor, Rec’r.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    1. Receiver—Pleading.
    In an action or proceeding brought by a receiver, an allegation that he has been appointed receiver in a proceeding named is sufficient. It is not necessary to allege each step in the proceeding to show his appointment was valid.
    2. Same.
    Where the answer denies the validity of such appointment, the receiver is bound to prove such appointment before he can recover.
    3. Same—Trust fund.
    The rule that a receiver cannot reach a trust fund, but that the creditor must himself proceed in equity, applies only where the trust is to receive the rents and profits and apply them to the use of the beneficiary, and not where the trust is only to convert and distribute.
    4. Executors and administrators—Accounting.
    A counterclaim in favor of the executors is no answer to a proceeding to compel them to account, as such counterclaim cannot be tried before-the surrogate.
    5. Same.
    That the executors have accounted to the legatees for substantially all the personal property does not relieve them from accounting for the proceeds of sales of the real estate.
    Appeal from order of the surrogate directing the executors of the estate of Henry Ward Beecher to account.
    
      W. C. Beecher, for app’lts; Leavitt & Leavitt, for resp’t.
   Cullen, J.

—This is an appeal from an order of the surrogate directing the executors of the will of Henry Ward Beecher to account. The petitioner applies as receiver of the property of Herbert F. Beecher, a son of the testator and a beneficiary under the latter’s will. The records show that the application was granted on the petition and answer alone, the order reciting “ and the parties having only submitted the same.”

The petition alleged that the applicant was appointed receiver in a certain proceeding named. This was a sufficient allegation of the petitioner’s title. He was not bound to plead each step in the proceeding to show his appointment was valid. That could be proven on the hearing if his appointment was put in issue. Rockwell v. Merwin, 45 N. Y., 166; Stewart v. Beebe, 28 Barb., 34.

His appointment as receiver, if unchallenged, prima facie entitled the petitioner to the relief granted. The point that a receiver cannot reach a trust fund, but that the creditor must himself proceed by an action in equity has no application to this case. That rule applies only where the trust is to receive the rents and profits and to apply them to the use of the beneficiary. The will does not appear in the record before us, but so far as can be gathered from the petition and answer the trust is only to convert and distribute.

Several affirmative matters are set forth in the answer of the executors, none of which were sufficient to require a denial of the application. The alleged counterclaim of the executors could not be tried before the surrogate. The alleged assignments of the judgment debtor’s interest in the estate were subsequent to the appointment of the petitioner as receiver. That the executors had accounted to the legatees for substantially all the personal property did not relieve them from accounting for the proceeds of the real estate.

But there is one error for which on this record we must reverse the order below. As already stated, the allegation that the petitioner was duly appointed receiver sufficiently pleaded that fact. But the executors by their answer denied a valid appointment. 0 It was not necessary for them to point out in their answer what defect there was in the petitioner’s appointment, for the various steps in the proceeding leading to that appointment had not been pleaded. The answer was, therefore, sufficient to raise the issue and the petitioner was not entitled to his order until he had proved his appointment.

We give'effect to this error with some reluctance since it is possible that the facts concerning the petitioner’s appointment were conceded on the hearing below.

In his opinion the learned surrogate refers to the decision of this court in O'Connor v. Mechanics' Bank, 27 St. Rep., 1, to show that the petitioner’s appointment was valid. But the difficulty is that the evidence which established that fact in the case cited is not in this proceeding. Since the point is expressly taken we must decide this appeal on the record before us.

The order appealed from must be reversed, without costs, and the proceedings remitted to the surrogate for further hearing and proof.

Barnard, P. J., and Dykman, J., concur.  