Elsworth v. Hinton — 23 Abb. N. Cas. 374

Majority

p. 374

ELSWORTH v. HINTON.

N. Y. Supreme Court, First District, Special Term;

October, 1889.

Headnote

1. Discovery and inspection of trustee's boohs and papers.] Where an. action for the settlement of a trustee’s accounts is pending before a. referee to take and state such account pursuant to an interlocutory judgment in the action, the court may require the production before the referee of the trustee’s books, checks and other papers, for the purpose of their inspection by the cestui que trust.

2. The same.] In such case the direction as to the custody of the. documents and the times when they shall remain at his office, may be left to the referee.

The plaintiffs, as executors of Edward Elsworth, who was in his lifetime a trustee under the will of Henry Elsworth, deceased, brought this action against the defendants, who-are the beneficiaries under the said will of Henry Elsworth, for an accounting of the trust estate of which plaintiffs’ testator was the trustee. An interlocutory decree was entered directing the plaintiffs, as executors of Edward Elsworth, to-so account. A referee was appointed to take and state such" account. During the progress of the reference this motion was made at Special Term by the defendants for an order-requiring the plaintiffs to produce before such referee all the-books of account of the estate, check books, cash books and all other books relating to the trust estate within their custody or control, and also for an amendment of the interlocutory decree, by adding a provision directing the plaintiffs-to produce such books and papers before the referee.

p. 375

Carlisle Norwood, Jr., for the motion.

Wm. A. Coursen, opposed.

There can be no doubt that the court has the power to require plaintiffs to produce their books of account for inspection, upon the accounting which is now pending before the referee. The court of chancery always had such power, and it is now expressly conferred upon the court, and upon a referee authorized to hear testimony, by section 867 of the Code. The accounting is a part, and a very important part, of the trial, and is had before the referee merely because that method of procedure is more convenient for litigants and the court.

Whether the books should actually be deposited and left, in the office of the referee, during the pendency of the-reference, or for some fixed period, depends upon how many books there are, their size, and whether the referee has a secure and convenient place in which to keep them.

I have also no doubt that the court has the power to amend the interlocutory decree by inserting a provision requiring the production of the books before the referee.

Motion granted, with $10 costs, to abide the event.^[1]

* The following order was entered upon this decision. Ordered that the plaintiffs be and they hereby are directed, for the purposes of said interlocutory decree, to produce before the said referee upon oath for inspection by the said defendants, within five days after the entry of this order, all of the books of account and other books, papers, check books, or stubs of check books and returned checks, containing accounts, memoranda or entries of any sort, and all books and papers relating to the estate of Henry Elswcrth, deceased, in their custody or under their control, and that the plaintiffs are to be examined in reference thereto as the said referee shalldirect, and that said books, when deposited before said referee, shall be subject to his direction as to whether the same can be securely and conveniently kept in his office, and if not, for what periods they should remain. Note.—See 2 Abb. New Pr. & Forms, 658.