| N.Y. App. Div. | Jul 1, 1900
The facts show that the objection that there was laches in making •the application was not well taken. The point principally relied upon on the argument of this appeal was that the plaintiffs had no standing in court to maintain this action, and that for that reason no good could be accomplished by permitting them to have the order for the discovery, the learned counsel for the appellants insisting that the right of action was in Johanna Fleischmanfi, as executrix of Maximilian Eleisehmann, and that the plaintiffs, as beneficiaries under his will, had no rights except such as they could obtain from her upon an accounting. That the right of action primarily was in Johanna Eleisehmann may be admitted, but it is alleged in the complaint that Johanna Eleisehmann having been appealed to to bring this action Tefused to do so. That being the situation, the plaintiffs would be entirely remediless unless they could resort to the court to enforce the alleged right, if they were forbidden to resort to the aid of the court to obtain the right which they alleged was taken away from them by the fraud practiced upon their representative, hut which that representative refuses to try to obtain. It does not need the citation of authorities to show that when a trustee, in whom is the primary right of action to redress a wrong to the estate of which his cestiois gtie trustent are beneficiaries,
It is objected that the facts sought to be discovered are not material because the object of the discovery is to ascertain the good will of the firm of Fleischmann & Co., the appellants claiming that, that good will was. not a part of the assets of the partnership after the death of Maximilian Fleischmann. The plaintiffs undoubtedly .claim to be entitled to a share of the good will as a result of the; original contract between Maximilian and Charles Fleischmann, by which the partnership was not to expire upon the death of either partner, but was to be continued by his personal representatives.. What effect that agreement, which was partially carried into effect,, might have had upon the good will it is not necessary here to-consider. The plaintiffs seek this discovery not only to ascertain, the value of the good will, but to learn what the assets of the firm were at the time of the death of Maximilian Fleischmann and subsequently, and what had become of them and of the profits which, had been earüed by the plaintiffs after his death and which were-carried on under the several arrangements with Johanna Fleischmann. For these purposes the books are clearly material, and because' they are material the order should be affirmed, with ten; dollars costs, although the plaintiffs may have asked more than they are entitled to.
Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.