Opinion
December, 1900.
De Borden Wilmot for plaintiff.
Delos McCurdy for defendant.
The point is made that the complaint is insufficient to require the defendant to account. It alleges only that the defendant did not account to the deceased, and has not accounted since her death. It is claimed that it should go further, and have allegations showing that the defendant still has property of the deceased, or was indebted to her at the time of her death for money received in his fiduciary relation to her. The complaint is sufficient. It alleges the fiduciary relation, and that the defendant has never accounted; and the proof sustains this. The existence of the fiduciary relation suffices to require an accounting, for part of the fiduciary duties is to account; and the burden is therefore on the defendant to show that his trust duties have been fully performed, and not on the plaintiff to prove the negative; and this he can do by showing that he has accounted, or else by now accounting (Marvin v. Brooks, 94 N.Y. 71; Frethey v. Durant, 24 A.D. 58).
The claim that the accounting of the defendant to the Surrogate on his resignation as executor included the accounting now asked for, and is therefore a bar to this suit, seems to be unfounded. That it did not actually include it is apparent from an inspection of the account there. That it must have included it in legal contemplation, or, in other words, that such an accounting was necessarily embraced within the issues of that proceeding, and could and should have been decided therein (as in Barber v. Kendall, 158 N.Y. 401), is not the case. That accounting could legally involve the doings of the defendant as executor only.
Interlocutory judgment for an accounting.