WHITLEY v. SPEED.

(Supreme Court, Appellate Division, Third Department. January 5, 1916.)

Under Code Civ. Proc. § 522, providing that each material allegation of the complaint not controverted by the answer shall be taken as true, a complaint in an action by an administrator for an accounting as to property alleged to be in the hands of defendant, who stood in a fiduciary relation to decedent, which alleges that decedent died intestate, and that plaintiff was appointed his administrator, must be taken as true, where not controverted by the answer.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 270-275; Dec. Dig. 129.]

2. EXECUTORS AND ADMINISTRATORS 471-EXISTENCE OF WILL-ACTION BY

ADMINISTRATOR.

In an action by an administrator for an accounting as to property in the hands of defendant, who stood in a fiduciary relation to decedent, defendant cannot defeat the action by an assertion that the action is not being prosecuted in good faith by plaintiff, because defendant has discovered a will executed by decedent, where such will has neither been probated nor offered for probate.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 2018-2024; Dec. Dig.

3. DISCOVERY

LIEF.

471.]

55-EXAMINATION-AFFIDAVITS ON INFORMATION AND BE

In an action by an administrator for an accounting, where after issue joined plaintiff moved for examination of defendant before trial, supporting the motion by affidavits made on information and belief, the affidavits were sufficient, where defendant stood in a fiduciary relation to decedent.

[Ed. Note.-For other cases, see Discovery, Cent. Dig. §§ 68-70; Dec. Dig. 55.]

4. DISCOVERY 55-EXAMINATION-AFFIDAVITS ON INFORMATION AND BELIEF.

The rule that affidavits for an order for examination of an adverse party to secure information for the framing of the complaint cannot be based on information and belief is not applicable to an examination sought after issue joined for the purpose of obtaining evidence for use at the trial.

[Ed. Note. For other cases, see Discovery, Cent. Dig. §§ 68-70; Dec. Dig. 55.]

Appeal from Special Term, Tompkins County.

Action by William H. Whitley, as administrator of Gilbert S. Higgins, deceased, against Robert L. Speed. From an order denying his motion to vacate or modify an order for defendant's examination before trial, defendant appeals. Affirmed.

Argued before KELLOGG, P. J., and LYON, HOWARD, WOODWARD, and COCHRANE, JJ.

Miller & Stephens, of Ithaca (Friend H. Miller, of Ithaca, of counsel), for appellant.

David M. Dean, of Ithaca (William Nelson Noble, of Ithaca, of counsel), for respondent.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

WOODWARD, J. The plaintiff is the administrator of the estate. of Gilbert S. Higgins, deceased, and brings this action to compel the defendant to account for his dealings with the property of the decedent during the time that the defendant was acting for the said Gilbert S. Higgins under a power of attorney. The plaintiff alleges a cause of action, necessarily upon information and belief as to many of the matters, among them that the defendant received an assignment of a certain bond and mortgage from the said Gilbert S. Higgins, during his lifetime, absolute in form, but in fact coupled with a trust. The learned court at Special Term granted the plaintiff's motion to compel the defendant to submit to an examination before trial. The defendant moved the Special Term for an order vacating the order, or modifying the same, and this motion being denied appeal comes to this court. The defendant urges as reasons why his motion should have been granted that the plaintiff is not prosecuting this appeal in good faith, apparently oblivious to the fact that the plaintiff is not prosecutng an appeal at all, but is merely standing upon his rights under the order.

[1] The defendant's contention on the question of the plaintiff's good faith is based upon an affidavit, submitted to the Special Term, to the effect that the defendant claims to have discovered a will made and published by the decedent, by the terms of which the defendant is made one of the executors of the estate. But this alleged will has not been probated; it may never be probated. The complaint in the action alleges, and the answer admits, that the said Gilbert S. Higgins died intestate, and, until the will has been probated, this undenied allegation of the complaint must be accepted and acted upon as true. Code Civ. Proc. § 522.

[2] Upon the pleadings the plaintiff is entitled to the order which has been granted, and to suggest that he is not acting in good faith. because the defendant claims to have discovered a will, is hardly fair. The plaintiff is the administrator of the estate; he is acting in a representative capacity, and it is his duty to protect and preserve the estate so long as he is acting in the official capacity. When the will is probated, if it ever is, the administration will terminate; but until that event the duties of the plaintiff are not changed, and he ought not to be charged with bad faith in doing just what it is his duty to do under his letters.

[3] The defendant urges that the order for his examination should be vacated, because the moving affidavits are made upon information and belief; but we are of the opinion that the rule, which is applied where evidence of the existence of a cause of action is required, is not necessary under the facts of this case, where the defendant has occupied a fiduciary relation to the plaintiff's intestate, and where he should be prepared to reveal the information which is essentially within his own knowledge, and which cannot be presumed to be known to the plaintiff.

[4] There are certain fundamental differences between an examination of an adverse party after issue joined, to obtain evidence for use at the trial, and an examination in order to frame a complaint.

Decisions as to the former are not necessarily authoritative as to the right to the latter. Matter of Gardner, 124 App. Div. 654, 109 N. Y. Supp. 95. Boskowitz v. Sulzbacher, 121 App. Div. 878, 106 N. Y. Supp. 865, and Mitchell v. Central Mines Development Co., Limited, 124 App. Div. 325, 108 N. Y. Supp. 953, were both cases where the examination was sought to enable the plaintiff to frame a complaint, and the rule in such cases is undoubtedly as suggested by the defendant; but the purpose of examination after issue joined is to develop the truth, and the courts have wisely swept away all petty restrictions upon the full use of this privilege, and the rule is well established that where the moving papers comply with the statute the party is entitled to the order as a matter of law. Cherbuliez v. Parsons, 123 App. Div. 814, 108 N. Y. Supp. 321; Stevens v. Weygandt, 163 App. Div. 543, 544, 148 N. Y. Supp. 958, and authorities there cited.

The order appealed from should be affirmed, with $10 costs and disbursements, and the appellant should be directed to appear at a day certain and submit to examination. All concur.

(92 Misc. Rep. 409)

PEOPLE ex rel. JONES v. SAXE et al., State Tax Commission. (Supreme Court, Special Term, Schoharie County. November, 1915.) MANDAMUS 77-MORTGAGE TAX APPRAISER-REMOVAL-CIVIL SERVICESPANISH WAR VETERAN.

Under Civil Service Law (Consol. Laws, c. 7) § 21, providing that a reduction of the compensation of any honorably discharged soldier, when intended to bring about his resignation, shall give him a remedy by mandamus for righting the wrong, relator, in mandamus against the state board of tax commissioners, was entitled to a writ compelling them to restore his salary to $1,800 for the period during which he was out of the position of mortgage tax examiner in the civil service, or to reinstate him, where it appeared that he was a veteran of the Spanish War, and was appointed such examiner, in which position he served until the tax commissioners reduced his salary from $1,800 to $900 a year, in consequence of which he quit the position and remained out of same for several months and until he was reinstated, and it further appeared, in view of the fact that no complaint was made of his work and that the salary of neither of two other tax examiners in the same office was reduced, that this action of the commissioners was intended to force him to quit his position.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 161-169; Dec. Dig. 77.]

Mandamus by the People, on the relation of Leland C. Jones, against Martin G. Saxe and others, constituting the State Tax Commission. Writ allowed.

C. E. Nichols, of Jefferson, for relator.

E. E. Woodbury, Atty. Gen., and E. G. Griffin, Deputy Atty. Gen., for respondents.

HASBROUCK, J. Leland C. Jones, a veteran of the Spanish War, was appointed to the civil service of the state December 6, 1910, and

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

served until July 31, 1914. From that time he was out of the service until May 24, 1915, when he was restored to his old position. He seeks a mandamus to reinstate him for the time he was out of the service and to pay him the salary of the office during that time and some disbursements. The position which he held was mortgage tax examiner. He was not actually removed from it, but about the 1st day of July his salary, which had theretofore been $1,800 a year, was reduced by the state board of tax commissioners to $900 a year. He treated the reduction as a removal and withdrew from the position. The board regarded his withdrawal as a resignation. There were two other mortgage tax examiners at that time in the office of the tax commissioners. The salary of neither of them was reduced.

No question was made of the qualification of the relator. When examined for his position, he "passed first on the list." As a witness on the trial he appeared thoroughly conversant with the duties of his position. No complaint appears ever to have been made against the manner in which he performed his duties. It appears, however, that there was some "reorganization" in the department, and that after it the board sent him a letter stating "that at a meeting of the board held on July 8, 1914, your salary as 'auditor' in this department was fixed at the rate of $900 per annum from July 15, 1914." The use of the word "auditor" in the communication was a mistake. See Minutes, page 16. In a letter to the tax commissioners on July 11, 1914, Jones sought to find out about the change in his salary and wrote: * I would thank you for a copy of the minutes of the meeting or meetings of your board which in any way show the proceedings of your board or which in any way affect the position held by me as mortgage tax examiner."

The board made no reply. Then Jones wrote and said:

**

"I am an honorably discharged veteran of the Spanish-American War. I hereby protest against attempting to fix my salary * I am ready and willing to perform any duties required of me by your honorable board as heretofore."

* * *

* *

at

*

**

**

$900.

串

If there was any inefficiency in Jones' service, here was an invitation to the board to point it out. This it did not do.

The contention of the relator is that the state board of tax commissioners, in reducing his salary from $1,800 to $900, removed him from his position. There are no authorities that have been called to my attention that support this extreme claim. Speaking with regard to the reduction of the salary of a school teacher the Appellate Division of the Second Department said:

"As to the effect of the reduction of the relator, I concur in the opinion expressed by Mr. Justice Marean at Special Term, to the effect that reduction is really a removal from the position occupied, accompanied by appointment to a lower position." People ex rel. Callahan v. Board of Education, 78 App. Div. 505, 79 N. Y. Supp. 624, affirmed 174 N. Y. 169, 66 N. E. 674.

It is not contended that in the case at bar there was any change made in the position held by the relator. With regard to other public employés than veterans and volunteer firemen the rule is well established that the power "to fix a salary carries the power to reduce it." Mat

ter of Rudd v. Cropsey, 159 App. Div. 275, 144 N. Y. Supp. 198; Sauerbrunn v. Board of Education, 150 App. Div. 407, 135 N. Y. Supp. 85.

If there were nothing in the case beside the mere fact of reduction of salary, the respondents would be entitled to judgment, for there is no difference in the reduction of the salary of an ordinary employé and a veteran, except that the veteran's may not be reduced with the purpose of bringing about his resignation. The facts hereinbefore stated we think warrant the inference at least that the reduction of the relator's salary was made for some purpose. It does not appear either that that purpose was economical or to relieve the state of the burden of an incompetent employé. We think the action of the tax commissioners in reducing the relator's compensation was arbitrary, and that its design was to bring about Jones' resignation or separation from his position. Jones, as a veteran of the Spanish War, enjoyed under the Civil Service Law certain privileges, preferences, and immunities as a public servant; particularly the immunity of not being forced out of the civil service by a reduction in his compensation against the terms of the statute, which provides:

**

or a

"Sec. 21. A refusal to allow the preference provided for in this and the next succeeding section to any honorably discharged soldier, reduction of his compensation intended to bring about his resignation shall be deemed a misdemeanor, and such honorably discharged soldier shall have a right of action therefor in any court of competent jurisdiction for damages, and also a remedy by mandamus for righting the wrong."

All that can be done in this proceeding is to determine the right of the applicant to his position during the time he was out of it. A mandamus may issue compelling the state board of tax commissioners to restore his salary for that period to $1,800 or reinstate him as he may be advised. Hilton v. Cram, 112 App. Div. 35, 97 N. Y. Supp. 1123.

Writ allowed. Fifty dollars costs, besides disbursements. Ordered accordingly.

PEOPLE ex rel. WAGNER v. WILLIAMS, Commissioner of Water Supply, etc., et al.

(Supreme Court, Special Term, Kings County. January, 1916.)

1. MUNICIPAL CORPORATIONS

218-EMPLOYÉS-VETERANS.

A Spanish War veteran, dismissed upon reduction of the number of employés in his class, is entitled to no preference in retention over nonveterans.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 589-598; Dec. Dig. 218.]

2. MUNICIPAL CORPORATIONS 218-EMPLOYÉS-CIVIL SERVICE RULES. Greater New York Charter (Laws 1901, c. 466) § 453, as amended by Laws 1908, c. 83, provides that the head of the department of water supply, gas, and electricity may appoint and remove a chief engineer of his department, with power to appoint and remove assistant engineers, and that an assistant engineer who has been appointed a deputy com For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 156 N.Y.S.-62