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First Department, October, 1911.

[Vol. 146. App. Div. 559; Vaughn Machine Co. v. Lighthouse, 64 id. 138.)

The determination of the Appellate Term should be reversed, with costs and disbursements, and the judgment of the Municipal Court reinstated.

INGRAHAM, P. J., McLAUGHLIN and MILLER, JJ., concurred; LAUGHLIN, J., dissented.

Determination reversed, with costs and disbursements in this court and in the Appellate Term, and judgment reinstated.

ALEXANDER F. SLAUGHTER, Respondent, v. BERNARD TURKEL

and MORITZ FELSTINER, Copartners, Doing Business under the Firm Name and Style of TURKEL & FELSTINER, Appellants.

First Department, October 20, 1911.
Discovery - examination before trial — suit for accounting.

A plaintiff suing in equity for an accounting is only entitled to examine

the defendant before trial as to such facts as are material and necessary to be proved in order to entitle him to an interlocutory judgment for an accounting..

APPEAL by the defendants, Bernard Turkel and another, copartners, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of May, 1911, denying the defendants' motion to vacate an order for the examination of the defendant Felstiner before trial.

Abraham I. Spiro of counsel [Spiro & Wasservogel, attorneys], for the appellants.

George H. Francoeur of counsel [Warren Leslie, attorney), for the respondent. CLARKE, J.:

The complaint is framed in equity, and the relief demanded is an accounting. This court has repeatedly held that in an action for an accounting the only examination to which the

App. Div.]

First Department, October, 1911. plaintiff is entitled before trial is as to such facts as are material and necessary to be proved to entitle him to an interlocutory judgment. He may not have an accounting until he has first established that he is entitled to it.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

INGRAHAM, P. J., MCLAUGHLIN, LAUGHLIN and MILLER, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion to vacate granted, with ten dollars costs.

LYMAN H. WEEKS, Respondent, v. FRED C. WHITNEY,

Appellant.

First Department, October 20, 1911.

Discovery - examination of defendant before trial – separate defense

alleging fraud.

A plaintiff suing on promissory notes which the defendant, as a separate

defense, alleges were given in part payment of goods which the plaintiff induced himn to purchase by false representations, is not entitled to examine the defendant before trial on an allegation that the matters set up in the separate defense, if true, are wholly within the personal knowledge of the defendant.

APPEAL by the defendant, Fred C. Whitney, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of August, 1911, denying the defendant's motion to vacate an order for his examination before trial.

Maurice Meyer (Arthur C. Kahn with him on the brief], for the appellant.

Charles Pope Caldwell, for the respondent.

LAUGHLIN, J.:

This action was brought to recover on three promissory notes made by the defendant to the order of the plaintiff. The mak

First Department, October, 1911.

[Vol. 146. ing and delivery of the notes are admitted; but the defendant alleges as a separate and distinct defense that the notes were given in part payment of certain pictures which he was induced to purchase of the plaintiff by false and fraudulent representations, and that on discovering that the representations made to him by the plaintiff were false and fraudulent he rescinded the purchase and tendered back the pictures.

The only basis for the order for the examination of the defendant is the plaintiff's affidavit showing the formal requirements, and that the examination is desired before trial “for the reason that the testimony of the said defendant is material and necessary for the plaintiff in the prosecution of said action, in that the matters set up by the defendant as a special defense, if true, are wholly within the personal knowledge of the defendant." On the trial the defendant will have the burden of establishing the allegations of his separate defense and it will doubtless be necessary for him to take the stand as a witness. There is nothing to show that without the examination the plaintiff is in danger of having the defense established without an opportunity to disprove it by the testimony of the defendant; nor does it even appear that the plaintiff has any ground for believing that the testimony of the defendant will establish the falsity of his own allegations of fraud contained in his verified answer. The order for the examination of the defendant in these circumstances was not warranted and should have been vacated.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

INGRAHAM, P. J., MCLAUGHLIN, CLARKE and MILLER, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

1

App. Div.]

First Department, October, 1911.

LOTTIE SCHMALZ, as Executrix, etc., of FRED SCHMALZ,

Deceased, Respondent, v. WILLIAM L. Crow CONSTRUCTION COMPANY, Appellant.

First Department, October 20, 1911.

Costs - non-resident executrix suing to recover for death in this State

– security for costs - court- power of Appellate Division to review discretionary order.

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A non-resident widow who, having obtained letters testamentary in this

State on the ground that her deceased husband, who was a non-resident, left property here, on bringing a statutory action to recover for the death of her husband alleged to have been caused by the negligence of the defendant within this State, should be required to give security for costs. This is true even though it be shown that decedent left money on deposit in a savings bank in this State, if it do not appear that the money was still on deposit when the action was brought, and if the amount thereof, even though still on deposit, is wholly inadequate as

security for the costs which may be awarded to the defendant. The discretion of the court in requiring a plaintiff to give security for

costs in actions by or against executors, pursuant to section 3271 of the Code of Civil Procedure, is reviewable by the Appellate Division.

APPEAL by the defendant, the William L. Crow Construction Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of June, 1911, as resettled by an order entered on the 29th day of August, 1911, denying the defendant's motion for security for costs.

Walter C. Stevens, for the appellant.

Stuart G. Gibboney, for the respondent.

LAUGHLIN, J.:

This is a statutory action by a widow as executrix to recover for the death of her husband, alleged to have been caused by the negligence of the defendant within this State.

The decedent resided in New Jersey, but he died in New York, and his widow resides in New Jersey, but letters testamentary on the last will and testament of her husband were issued to her by the surrogate of New York county on the ground that he left property here. An order for security for

First Department, October, 1911.

(Vol. 146. costs was granted on an ex parte application and vacated, with leave to renew the application under section 3271 of the Code of Civil Procedure upon notice. The order now under review recites that the motion was made pursuant to sections 3268, 3271 and 3272 of the Code of Civil Procedure. The motion was made on the grounds of the non-residence of the plaintiff, and that the action is brought by an executrix. It was shown in opposition to the motion that the decedent left within the State of New York “a joint account in the German Savings Bank, amounting at his death to the sum of One hundred and seventy dollars, and that he left no other property whatever, except a house and lot in East Rutherford, Bergen County, New Jersey," the title to which was in his name and in the name of his wife.

In so far as the motion was made pursuant to the provisions of section 3271 of the Code of Civil Procedure, the court was undoubtedly called upon to exercise judicial discretion with respect to the propriety of requiring security for costs to be given by the executrix (McNeil v. Merriam, 57 App. Div. 164), which discretion is reviewable here. If the plaintiff be a nonresident of the State within the purview of section 3268 of the Code of Civil Procedure the defendant was entitled to an order for security for costs as matter of right. The phraseology of the provisions of that section indicates that the Legislature did not intend to vest any discretion in the court with respect to requiring a non-resident plaintiff, or other plaintiffs enumerated in that section, to give security for costs. By its express provisions the determination of the question as to whether security for costs shall be required of a plaintiff therein enumerated is left solely to the defendant. It is provided, among other things, that “the defendant, in an action brought in a court of record, may require security for costs to be given, as prescribed in this title, where the plaintiff was, when the action was commenced, either

“1. A person residing without the State.” The phraseology of section 3271 of the Code of Civil Procedure is materially different, for there it is provided, among other things, that in an action brought by or against an executor or administrator in his representative capacity “the court may, in its discretion,

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