Fatman v. Fatman. his fees, they have expressly waived the statutory limit of six dollars per day, and have substituted a different rate of compensation-one not fixed by the Code, but equally certain, because the amount was to be determined in a mode agreed upon by the parties, and which was equally as specific when once fixed as if the exact amount had been specified in the agreement itself. This view of the law was sustained by a majority of the court in Burt v. Oneida Community (Sup.; 12 N. Y. Supp. 806), which would be followed but for the fact that the rulings made by the court of appeals in the two cases cited are so clearly opposed to the decision in Burt v. Oneida Community, supra, that we feel constrained to respect its construction by affirming the order appealed from, with costs. SEDGWICK, Ch.J., concurred. FATMAN, RESPONDENT, v. FATMAN, INDIVIDUALLY AND AS EXECUTOR, ETC.,* OF JOSEPH FATMAN, DECEASED, APPELLANT. N. Y. COURT OF COMMON PLEAS, GENERAL TERM; § 870 et seq. Examination of party before trial-sufficiency of affidavit-scope. Where in an action brought by a legatee against an executor and trustee for an accounting, in which it appeared that the decedent was a member of a firm and had an interest in it to the extent, as shown by an inventory filed by the defendant, of $275,000, and that the personal property of the estate was $327,797.29, the plaintiff secured an order for the examination of the defendant before trial upon an affidavit setting forth these facts and also that the plaintiff had no knowledge of any source of information, except the testimony of the defendant and other Fatman v. Fatman. partners of the said decedent, as to what were the terms, provisions and conditions of their articles of copartnership, oral or written, nor as to who were members at the time of the death, nor what was the extent of decedent's interest in the assets of the firm, nor what had been the operation of the firm since his death as affecting his interest in the assets, nor what changes, if any, had taken place in the membership of said firm since his death, nor in what respect said changes had affected the interest of the decedent and of his executor and trustees in the assets, nor what, if anything, was left in the trust fund created by the provisions of the will in the assets of the firm, nor any of the facts or incidents connected with and created by the provisions under said will, and that said deposition was necessary and material to the plaintiff in the prosecution of the action, and that the plaintiff could have no knowledge of the assets, nor of anything concerning said trust under the will or its administration, nor concerning any part of the estate or its administration, except by said testimony, and that it was necessary for plaintiff to frame his complaint,-Held, that a motion to vacate an order was properly denied when the affidavit was sufficient to justify an order for the examination of the defendant before trial. It is not necessary that an affidavit to procure an order for the ex amination before trial should state a complete cause of action, but it is sufficient if the nature of the action and the substance of the judgment demanded are set forth. While, it seems that the court of common pleas cannot entertain jurisdiction of an action brought simply for an accounting as to personal property, it has such jurisdiction where the accounting is to relate both to personal and real property. The Statute of Limitations is an affirmative defense, and the fact that apparently the Statute of Limitations has run and barred an action upon a claim, is no reason for vacating an order for the examination of the defendant before trial for the purpose of enabling the plaintiff to prepare his complaint. The scope of an examination of a defendant before trial should not be limited where the testimony is to be taken before a judge and not before a referee. (Decided May 2, 1892.) Appeal from an order of the special term of this court denying a motion to vacate or modify an order made herein for the examination of the defendant to enable the plaintiff to frame his complaint in this action. Fatman v. Fatman. The facts are stated in the opinion. J. A. Shoudy, for appellant. William J. Hardy, for respondent. GIEGERICH, J.-Joseph Fatman, father of both plaintiff and defendant, died in October, 1869. He was then a member of the firm of Fatman & Co., of New York City. By his will he directed his executor to represent his interests in said copartnership, and, to all intents and purposes, carry out said copartnership in the same manner as though the testator were living, during the period provided for in the articles of copartnership, and that the said partnership should continue and be prosecuted by the remaining partner and his executor. The defendant became the sole executor under his father's will, and in January, 1870, about three months after his father's death, filed an inventory showing personalty of the appraised value of $327,797.29, including the testator's interest in the firm of Fatman & Co., which was appraised at $275,000. The plaintiff demanded from the defendant an accounting and the payment to him of his share of his father's estate; but the defendant refused to comply with the demand, and the plaintiff now brings this action for the purpose of obtaining a judgment establishing and adjudicating the rights of the plaintiff in the real and personal estate of his father, and requiring and directing the defendant, as sole executor and trustee of said Joseph Fatman, deceased, to file and judicially settle his account, and to pay over to the plaintiff his share in the proceeds of the said estate as a legatee of the said testator. Upon the affidavit of the plaintiff setting forth these facts and other facts and circumstances, which will hereinafter more fully appear, an order was made for the Fatman v. Fatman. examination of the defendant to enable the plaintiff to frame his complaint. Thereafter the defendant moved to vacate, set aside or modify such order, which application was founded upon his affidavit, wherein he states that the firm of Fatman & Co. was dissolved by his father's death; that its affairs were liquidated by Louis Fatman, as surviving partner; "that all of the assets of said firm and of both partners were used to pay the debts of said firm, and that, after all had been applied, left over half a million of indebtedness unpaid;" that in 1869 a new firm, composed of the defendant individually and the said surviving partner Louis Fatman, was organized for one year; that it received none of the assets of the former firm and had no connection with its business; that in 1870 "a new firm of Fatman & Co." was organized, composed of Louis Fatman, Solomon J. Fatman, Morris Ranger, and Solomon Ranger; that about 1882 Morris Ranger retired and about 1883 Louis Fatman died, and the firm is now composed of the remaining members; that none of the assets of the original firm of Fatman & Co. ever came into the hands of this firm; that about the year 1877 all of the assets of Joseph Fatman, together with his interest in the assets of the original firm of Fatman & Co., had been collected by the defendant and said Louis Fatman, and paid out upon account of the indebtedness of his said firm; that since 1877 no assets whatever of the said Joseph Fatman have come into his hands nor those of said Louis Fatman, nor have any such assets ever come into the hands of either of said "subsequent firms of Fatman & Co.;" and that the plaintiff's right to demand an accounting accrued upward of twenty years ago. The defendant also alleged that in July, 1890, the plaintiff applied to the surrogate for an order directing him to render an account in the estate of said Joseph Fatman, and that the application was denied upon the ground that the plaintiff's right to demand such an ac Fatman v. Fatman. counting had long since expired. The statements of the defendant as to the alleged result of the proceedings had in the surrogate's court are denied by the attorney for the plaintiff, who in an affidavit alleges that they were discontinued before any determination was reached therein. The motion made by the defendant was denied, from which determination he has appealed, and thus there is presented for review the validity of the order in question. It is insisted by the defendant that the affidavit was wholly insufficient to justify an order for the examination of the defendant. There is no force in this contention. The affidavit upon which the order was made contains, in addition to the matter above stated, the statement that the plaintiff has no knowledge nor any source of information, excepting the testimony of the defendant and the other copartners of said Joseph Fatman, deceased, as to what were the terms, provisions and conditions of the said articles of copartnership, oral or written, nor as to who were copartners of the said Joseph Fatman in the said firm at the time of his death, nor what was the extent of the interest of the said Joseph Fatman in the assets of the said firm, nor what has been the result of the operations of the said firm since the death of the said Joseph Fatman as affecting the latter's interest in the said assets, nor what changes, if any, have taken place in the membership of the said firm since the death of the said Joseph Fatman, nor in what respect such changes in said firm have affected the said interests of the said Joseph Fatman, deceased, and of his executor and trustee in the assets of said firm, nor what, if anything, is now left of the trust fund created by the said provisions of the said will in the assets of said firm; nor any of the other facts or incidents connected with the ad |