Muller v. Ackerman

246 A.D. 849

Opinion

Order, in so far as an appeal is taken therefrom, denying examination before trial of defendant Ackerman, reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs; the examination to proceed on five days’ notice. If the action were for an accounting alone the plaintiff would not be entitled to the examination, but the action is for more than an accounting. The complaint alleges that plaintiff — a eoadventurer —• has been deprived of his property and its profits through the fraud of respondent, who acted in a fiduciary capacity. Under the circumstances plaintiff was entitled to examine defendant with respect to the items mentioned in the notice of motion. (Wertheim v. Grombecker, 229 App. Div. 16; Muller v. Ackerman, 246 id. 639.) Lazansky, P. J., Hagarty, Davis, Johnston and Adel, JJ., concur.