Tooley v. Exempt Firemen's Benevolent Ass'n

13 A.D.2d 685, 213 N.Y.S.2d 937, 1961 N.Y. App. Div. LEXIS 11527

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 1961
• Status: Published

Opinion

In an action for a declaratory judgment and an accounting, plaintiffs appeal from an order of the Supreme Court, Westchester County, dated September 28, 1960, denying their motion, pursuant to sections 288 and 296 of the Civil Practice Act, to examine defendant before trial and to compel defendant to produce specified documents upon the examination. Order affirmed, without costs, and with leave to plaintiffs, if so advised, to renew their motion to examine defendant before trial respecting, however, only such matters as are relevant and material to plaintiffs’ right to a declaratory judgment and an accounting. Since defendant took no appeal from the order denying its motion to dismiss the complaint, it is presently the law of this case that plaintiffs have standing to sue and that the complaint herein states a cause of action. However, the law is well settled that before plaintiffs may be granted an accounting they must establish their right to one (Rector, Churchwardens & Vestrymen of Church of Holy Trinity v. Munsell, 11 A D 2d 698; Moffat V. Phoenix Brewery Corp., 247 App. Div. 552; Lundberg v. Potter, 193 App. Div. 885; Slaughter v. Turkel, 146 App. Div. 620; Solar Baking Powder Co. v. Royal Baking Powder Co., 128 App. Div. 550). Until there is a determination that plaintiffs are entitled to participate in the benefits of the moneys in question, it cannot be said that evidence as to details of the account, sought by the instant motion, will ever be needed. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Pette, JJ., concur.