52 N.Y.S. 756 | N.Y. App. Div. | 1898
The plaintiff, as temporary administrator of Joseph Richardson, deceased, brought this action to recover from the defendant certain
We think that the plaintiff was entitled to examine this defendant for the purpose of enabling him to frame his complaint. It appears .from these affidavits that the defendant, the daughter of Joseph Richardson, had had possession of a large portion of the property during his lifetime, and she is now in possession of a considerable portion of the property which had, shortly prior to the death of Joseph Richardson, belonged to him, or had been in his possession or the possession of his agent or broker. It is quite clear that, from the position the plaintiff occupies, it is impossible that he should have personal knowledge of the estate of the deceased, or what property is now in the possession of the defendant which had belonged to the deceased, and it appears from his affidavit that it has been impossible for him to acquire such knowledge from the investigations that he has been able to make. There is enough to show that the plaintiff has at least a cause of action against the defendant to recover the possession of the property in her hands which belonged to her father in his lifetime, and it is impossible that the plaintiff should properly prepare a complaint until he can ascertain what property the defendant has in her hands. To justify the court in granting this order it was necessary that an affidavit as prescribed in section 872 of the Code should be presented to a judge of the court in which the action is pending. The affidavit presented complied with this section. The facts amply justified the plaintiff in bringing this action. The defendant, who had access to her father’s securities, appears after his death to be in possession of a large
There is here sufficient to show that a cause of action exists in favor of the plaintiff: and against the defendant, and also that the testimony of the defendant is material and necessary for the party making the application, to enable him to prepare his complaint. Such allegations in these affidavits as are upon information and belief are brought within the rule allowing such allegations to be made upon applications of this character, as in each case the source of the information is stated; and the reason why the affidavit is not made by the person from whom the information was derived is also stated. As this application for an examination was made before issue joined, it was incumbent upon the plaintiff to show that the examination was necessary to enable him to prepare his complaint. But we think the facts sworn to upon this application are sufficient to show that the plaintiff: wras without knowledge as to the particular securities in the possession of the defendant which had belonged to her father,
The fact that the defendant could not be examined as to transactions between herself and the deceased on her own behalf is not a reason for vacating this order. The plaintiff proposes to call the defendant on his (plaintiff’s) behalf. There is no rule of law which makes the testimony of a party to an action incompetent as to transactions between that party and the deceased when examined on behalf of the representatives of the deceased ; and the object sought to be attained by the statute which prohibits a party from being examined as to declarations of the deceased on his own behalf has no application where the examination is sought at the instance of the representatives of the deceased. If the plaintiff desires to call the defendant to examine her as to the source of her title to' this property held by her, there is no legal objection to such an examination; and because the law for the protection of estates prohibits a party having a claim against an estate from testifying in his own behalf, if the representatives of the estate are willing to waive that right to object to such an examination and call the person making such a claim as a witness on behalf of the estate, it is certainly no reason to refuse to permit such an examination because the witness would not be competent to give testimony as to personal transactions with the deceased on his own behalf.
I think, therefore, that the plaintiff was entitled to- an examination of the defendant for the purpose of ascertaining facts necessary to enable him to frame his complaint, and that the order appealed from should be reversed, with ten dollars costs and disbursements,
Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to vacate order for examination of defendant denied, with ten dollars costs.