Elsworth v. Hinton — 10 N.Y.S. 40

Majority

p. 40

Elsworth et al. v. Hinton et al.

(Supreme Court, Special Term, New York County.

October, 1889.)

Headnote

Discovery—Production of Books and Papers.

On a proceeding to settle a trustee’s accounts, the court, at special term, may order the production of books and papers before the referee, to whom the matter has been referred, so that they may be examined by the eestuis que trustent.

Henry Elsworth and another, executors of the will of Edward Elsworth, filed a complaint against Mrs. Sarah Hinton and others, beneficiaries under the will of Edward Elsworth, deceased, for an account of their testator’s transactions as trustee under the will of Henry Elsworth, deceased. The accounting was decreed, and a reference ordered. Defendants move that plaintiffs be required to produce before the referee all books and papers in their possession relating to the trusteeship. For former report, see 4 ÍT. T. Supp. 573.

William A. Coursen, for plaintiffs. Carlisle Norwood, Jr., for defendants.

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 powers, 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.