Opinion
June Term, 1903.
Richard L. Sweezy, for the appellants.
J.C. Thomson, for the respondent.
Present — PATTERSON, O'BRIEN, INGRAHAM, McLAUGHLIN and HATCH, JJ.
This appeal is from an order denying a motion to vacate an order directing the examination of the defendants above named before trial.
The affidavit upon which the order directing the examination is based sets forth the nature of the action, the substance of the judgment demanded, the nature of the defense, and complies in other respects with the section of the Code permitting an examination of witnesses before trial. (Code Civ. Proc. § 872.) Further facts are stated from which the court can see that a necessity exists for the examination and that the testimony of the witnesses sought to be examined is material and necessary to enable plaintiff to establish its cause of action.
The action is brought to reach a portion of the income from a trust fund and to have the same applied towards the payment of a judgment recovered against Jacob Lorillard and now owned by the plaintiff. The trust fund was created by the will of Pierre Lorillard for the benefit of Jacob Lorillard, who, according to the moving papers, is entitled to so much of such income as will suitably maintain and support him. The persons sought to be examined are the trustees of this fund and the purpose of the examination is to ascertain the extent and amount of such income, as well as the surplus, if any, which has accumulated during the period of their trusteeship, also for the purpose of ascertaining in whose possession the books and papers relating to said trust estate now are. Definite and accurate information of such subjects is peculiarly within the knowledge of the trustees, and the plaintiff, having no knowledge on the subject, has a right in advance of the trial to take their testimony. It is not obliged to wait until the trial and take its chances of their then being present either as parties or witnesses. ( Commercial Pub. Co. v. Beckwith, 57 App. Div. 574; Presbrey v. Public Opinion Co., 6 id. 600.) It also has a right to examine all of the trustees, they having been appointed at different times, to the end that it may show all the facts connected with the trust estate, and in this connection it is to be observed that no suggestion is made in the answering affidavits that such facts could be established by any one of them.
The order appealed from is right and should be affirmed, with ten dollars costs and disbursements.
Order affirmed, with ten dollars costs and disbursements.