
    In the Matter of the Application for the Removal of Augustus Cruikshank, as Trustee of the Estate of Benjamin Lord, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 16, 1894.)
    
    1. Reverence—Practice motion.
    The court, on a practice motion, has no power to make an order of reference to hear and determine, but only to take testimony and report with his opinion.
    2. Avvidavit—Striking out.
    It is error to strike from an affidavit relevant averments, simply because they are claimed to be untrue.
    Appeal from an order granting a reference, and from an order striking out, as false and scandalous, part of an affidavit.
    The petition for the removal of the trustee stated that Cruikshank was trustee under the will of Benjamin Lord, deceased ; that he had brought a suit in the supreme court to construe the will; that the judgment determined that Husted was entitled to one-eleventh of the estate; that Woodruff was personally interested in the estate under assignment from another beneficiary, and (among other grounds for the removal of the trustee) that Oruikshank had virtually surrendered the management of the trust to Yan Mess, his attorney ; “that the said estate had been managed apparently more in the interest of said trustee’s attorney than in the interests of the cestuis que trustent" and that Oruikshank, under Yan Mess’ influence, refused to pay over Husted’s share, for the purpose of forcing the recognition of a forged assignment which Yan Mess had taken, supposing he was buying Husted’s share; “ that, for the purpose of defeating said Husted in his efforts to secure redress, your petitioners allege that the said Yan Mess has procured and instigated certain attorneys to institute proceedings, whereby, through collusion with him as attorney for the trustee, it is sought to change and alter the judgment entered in this court in 1887, construing the will of Benjamin Lord; * * * but, notwithstanding such collusion, the motion was denied by Mr. Justice Patterson, with costs.” The motion to remove the trustee was denied by Judge Patterson.
    The matter asked to be stricken out of the affidavit of Mr. Yan Mess is that part of the following extract which is printed in brackets: “ The facts in regard to the proceedings to amend the judgment in the construction suit, referred to in said Woodruff’s affidavit, are as follows: That some time after the giving of the said general release by the said Husted [it was discovered that the said judgment in favor of the said Husted was procured by the fraud and deceit of the said Woodruff], and that the facts and circumstances touching the same are set forth in the affidavits hereto annexed, which have been served upon the said Woodruff, and are filed with the clerk of this court, together with a copy of-the opinion of Justice PATTERSON on said motion, and that said motion was not denied on the merits, but on the ground that the remedy was tó move to vacate, which motion has been made and is now pending.”-
    On the hearing of the motion to strike out it was ordered “ that it be referred to Gilbert M. Speir, Jr., Esq., counsellor at law, as a referee to hear, determine, and report whether the judgment obtained by Gilbert M. Husted in this court, mentioned in the moyin°- papers, 1 was procured by the fraud and deceit of the said Woodruff.’ ”
    The referee reported that the judgment was not obtained by the fraud of the said Woodruff.
    Mr. Woodruff then moved to confirm the referee, and it was ordered “ that the said motions as made to confirm the said report of said referee, and to strike out, be, and the same hereby are, granted, and that from the affidavit of Edward Van Mess filed in the office of the clerk of this court On October 10, 1892, the allegation referred to in the moving papers herein, to wit, the words, 1 It was discovered that the said judgment in favor of Husted was procured by the fraud and deceit of said Woodruff,’ be, and the same are, ordered stricken out and expunged from the record as false and scandalous, and ten dollars cost of motion and disbursements herein to be taxed by the clerk of this court; and that said costs of motion and said disbursements of said reference herein as so taxed be paid by said Edward Van Mess and said Augustus Cruikshank, the respondents herein, to said A. Edward Wood-ruff. And it is further ordered that in case of an appeal being taken -herein from the order confirming the report of the referee, that such an appeal may be heard on a case or bill of exceptions herein to be proposed by the said respondents, and to be settled by the said referee as on an appeal from a judgment. And it is further ordered that proceedings to enforce this order be stayed for thirty days from the date of this order, and, in the event of an appeal being taken therefrom, that such proceedings be, and they hereby are, stayed until ten days after the hearing and determination of such appeal.”
    
      JE. G. Perlcins, for app’lt; A. JE. Woodruff, for resp’t.
   Per Curtail

The court, upon a practice motion, has no power to make an order of reference to hear and determine. The only order which can be made is to take the testimony, and report with his opinion. Upon the merits we are of opinion that the court had no authority to strike out relevant averments simply because they are claimed to be untrue. The order should be reversed, with $10 costs and disbursements, and motion denied with $10 costs.  