Rosenthal v. Jackson

From the papers it appears that the plaintiff has sufficient knowledge to frame a complaint to compel the defendants to account for such moneys as they had received and for which they were accountable to the plaintiff’s testator. She is not entitled to an examination of the defendants before serving her complaint for the purpose of determining whether she has a cause of action.

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the defendants granted.

Present — Ingraham, McLaughlin, Clabke, Houghton and Scott, JJ.

I dissent on the ground that the plaintiff was entitled to examine the defendants to ascertain the terms of the trust under which it is conceded that they held certain moneys, and of which, according to' the moving papers, she has no knowledge.

Order reversed, with ten dollars costs and disbursements, and motion granted. 1