In the Matter of the Examination of Cora Gathen, Appellant, before Action, upon the Application of H. Henshall Bates, as Administrator of the Estate of David Gathen, Deceased, Respondent

In the Matter of the Examination of Cora Gathen, Appellant, before Action, upon the Application of H. Henshall Bates, as Administrator of the Estate of David Gathen, Deceased, Respondent. Third Department, May 20, 1927. Depositions — motion by administrator to take deposition for purpose of drawing complaint — administrator charges person sought to be examined with having used funds of decedent and with not having made accounting — administrator states in affidavit that ‘ ‘ An action is contemplated” to make said person answer to her trust — failure to state that an action is about to be commenced is technical error — affidavit alleges facts sufficient from which to draft complaint — motion denied. The administrator of the decedent is not entitled to examine the appellant for the purpose of obtaining information from which he may draw a complaint, since it appears from the moving papers that the administrator claims that the decedent lived with the appellant for many years, that she transacted all his business, had possession of his personal property, has never made any accounting, and refuses to do so. The administrator further states that “ An action is contemplated ” to compel the appellant to account. The moving papers show a technical error in stating “An action is contemplated ” rather than “ An action is about to be commenced.” Furthermore, the administrator’s contemplated action is one in equity and he has alleged facts sufficient to enable him to draft a complaint. It is not necessary that he have the examination. , Appeal by Cora Gathen from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 20th day of May, 1926, denying a motion made by her to vacate an ex parte order made at the Albany Special Term on January 27, 1926, requiring the appellant to appear before a referee to take her deposition to enable the administrator of the estate of David Gathen, deceased, to obtain information for the drawing of a complaint. Frost, Watson, Cass & Looby [J. S. Frost of counsel], for the appellant. John S. Wolfe [Borden H. Mills of counsel], for the respondent. [MAJORITY — Per Curiam.] Per Curiam. The respondent has been appointed administrator of the estate of the decedent who was a veteran of the Civil War, and who lost his eyesight during the war and who for many years lived with and was cared for by the appellant, Cora Gathen, his daughter. The respondent obtained the ex parte order for the examination of the appellant upon his affidavit that the decedent was the recipient of a large pension from the government for many years and that he had other property, real and personal, including a bank account in the joint names of the decedent and the appellant, and that the appellant transacted all of decedent's business. He alleged in such affidavit that the appellant had never made any accounting and refused to make any accounting and “ further refuses to give any information by which the facts can be learned what disposition she has made of his accumulated estate.” The respondent further alleges in his affidavit as follows: “ An action is contemplated to make her answer to her trust in her fiduciary capacity and her other wrongful conduct in the handling of his estate. It is necessary to take her deposition to enable this deponent to obtain information to enable him to have a complaint drawn.” The respondent does not state that an action is about to be commenced. He says: “ An action is contemplated.” Even if this were sufficient, the respondent’s contemplated action is necessarily an action in equity for an accounting. His affidavit sets forth facts sufficient to furnish the necessary allegations in such a suit for an accounting. “ The demand for relief is not a vital part of the complaint in an equitable action.” (Cross v. Bishop Oil Corporation, No. 1, 218 App. Div. 632, 635.) A plaintiff must establish a right to an accounting by interlocutory judgment before he may examine a party on the account. (Del Genovese v. Del Genovese, 149 App. Div. 266; Brown v. Brown, 203 id. 658; De Rapalie v. Gavin, 209 id. 883.) Therefore, to frame a complaint in this action for an accounting no examination of the appellant is necessary. (Teall v. Roeser, 206 App. Div. 371, 373.) The order should be reversed on the law, with ten dollars costs and disbursements, and the motion to vacate should be granted, with ten dollars costs. Cochrane, P. J., Van Kirk, Hinman, Davis and Whitmyer, JJ., concur. Order reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.