90 N.Y.S. 491 | N.Y. App. Div. | 1904
This is an action for an accounting. The complaint alleges in substance that about the year 1882 one G., the mother of the plaintiff, received a legacy of $20,000 ; that G. was a woman without
The defendant by his answer denies that he was the confidential adviser of G. and alleges that he received said bends in 1890 for safekeeping only, and that the relation between G. and himself was that of bailor and bailee, and that prior to said assignment by G. to the plaintiff he fully accounted and settled with G. for all - claims and demands existing between them excepting as to two bonds amounting to $1,000 which he alleges remain in his possession as collateral security for the payment of a note executed and delivered to him for value by G., and which note amounts to more than the value of said bonds. The defendant also alleges that all said claims of the plaintiff are barred by the Statute of Limitations.
After the issues were joined the plaintiff obtained an order ex parte for the examination of the defendant before trial. The defendant upon the same papers made an application at Special
We think that it sufficiently appears that the court at Special Term assumed that evidence of the defendant’s receipts and disbursements as the agent of G. would not he received on the trial of the issues. The defendant’s answer is more than a plea of payment. He claims that his accounting and settlement with G. is a bar to the action. A party to an action may be examined at the request of his opponent not only in regard to the facts necessary to establish an affirmative cause of action, but as to all matters material to the issues. (Herbage v. City of Utica, 109 N. Y. 81.) Assuming that the defendant was the confidential friend and adviser of G., evidence affecting the question as to whether the alleged accounting and settlement was fair and just to her or whether she knew and understood what she was doing and the effect of her acts in taking part in and assenting to the accounting and settlement will he competent and material. Such an inquiry may involve the consideration of the items of receipt and disbursement by the defendant. No good reason can be suggested why the defendant should not disclose the facts to show whether there was a proper basis for the settlement with G. (Whitman v. Keiley, 58 App. Div. 92.) The issues cannot be tried one at a time. The issues, including the defendant’s claim that the action cannot be maintained against him because he lias fully accounted and settled with G., must he determined prior to the interlocutory judgment. The trial of the issues may result in a full examination of the items of account between the defendant and G. That such a trial of the issues will result in disclosing to the court all of the facts necessary for a final judgment
Tire order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to modify the order for the examination of the defendant before trial denied.
All concurred.
Order reversed, with ten dollars costs and disbursements, and the motion to modify the order for the examination of the defendant before trial, denied.