48 N.Y.S. 839 | N.Y. App. Div. | 1897
The action was brought to compel an accounting and to recover the amount to which the plaintiff should, by such accounting, be entitled. The claim made was that the defendant was intrusted by the plaintiff, as her agent and attorney in fact, with valuable property interests, which he took charge of and out of which he realized a large amount of money which belongs to plaintiff, but which the defendant refuses to account for or pay over to her. The complaint was dismissed on the ground, as stated in the decision of the trial court, that the plaintiff had failed to prove any cause of action against the defendant. Dr. Thomas C. Durant died October 5, 1885, leaving a widow and two children, the plaintiff and defendant, him surviving. He left no will. At the time of his death the deceased was largely interested in the stock and bonds of the Adirondack Railroad Company, and the property of 'the company consisted of some 508,000 acres o£ land and a partially con
In the absence of the evidence of the other parties to that transaction, which was not taken on the trial, the evidence of the plaintiff
We do not think the surrogate’s decree is a bar to the accounting sought in this action. The accounting before the surrogate was as to-the property that came to the hands of the defendant as administrator, and was based upon the inventory made and verified by the defendant. It did not purport to relate to the property or property interests involved in this action. The .agreement between these parties was in effect that the defendant should take any and all proceedings necessary, and do any and all things essential, not only to secure his own, but also his sister’s, the plaintiff’s, interest in the property, equitable or otherwise. The accounting is to be had under the agreement with reference to this property, and is to be an accounting between, these parties as individuals, and not by the defendant as personal representative of his father’s estate.
There was no adjudication upon the accounting before the surrogate as to this property or the property rights here involved. Certainly there could have been no adjudication as to interests in real property, because the administrator had nothing to do with such interests, and, until the accounting is had, it will not be known whether any of the property interests as to which an accounting is had are in the nature of real property. The surrogate’s decree is conclusive upon the parties only so far as it is declared to be by the provisions of the Code of Civil Procedure (§ 2742, etc.), and we are aware of no provisions making it conclusive as evidence, or as a judgment with reference to the questions involved in this action.
Our conclusion is that the trial court erroneously dismissed the complaint in this action, and that the judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide event.
Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., concurred.
Judgment reversed and new trial ordered, costs to appellant to abide event.