Rosenthal v. Jackson — 125 A.D. 895

p. 895

Pauline Rosenthal, as Administratrix, etc., of Harris Rosenthal, Deceased, Respondent, v. Charles Jackson and Isidore Jackson, as Trustees of Certain Trusts Created by Mendel Rosenthal, Deceased, Appellants.

First Department

May 29, 1908.

Headnote

Deposition — examination to frame complaint — accounting.

Where a plaintiff has sufficient knowledge to frame a complaint to compel trustees to account, she is not entitled to an examination for the purpose of determining whether she has a cause of action before serving her complaint. McLaughlin, J., dissented, with memorandum.

Appeal by the defendants, Charles Jackson and another, as trustees, etc., from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 27th day of March, 1908, denying

p. 896

the defendants’ motion to vacate a prior order for their examination before trial to enable the plaintiff to frame her complaint.

Jerome C. Jackson, for the appellants.

Harold Nathan, for the respondent.

From the papers it appears that the plaintiff has sufficient knowledge to frame a complaint to compel the defendants to account for such moneys as they had received and for which they were accountable to the plaintiff’s testator. She is not entitled to an examination of the defendants before serving her complaint for the purpose of determining whether she has a cause of action.

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the defendants granted.

Present — Ingraham, McLaughlin, Clabke, Houghton and Scott, JJ.

I dissent on the ground that the plaintiff was entitled to examine the defendants to ascertain the terms of the trust under which it is conceded that they held certain moneys, and of which, according to' the moving papers, she has no knowledge.

Order reversed, with ten dollars costs and disbursements, and motion granted. 1