#### Ida M. Fleischmann et al., Infants, by Henry W. Sackett, their Guardian ad Litem, Plaintiffs, *v.*Julius Fleischmann et al., as Ancillary Executors of Charles Fleischmann, Deceased ; Julius Fleischmann et al., Defendants.

(Supreme Court, New York Special Term,

April, 1900.)

1. Action by infant residuary distributees of a deceased father to set aside instruments, executed by their mother, by which they were defrauded of their interests in their father’s firms.

Infant children and distributees of the residuary estate of a deceased person and partner in firms within and without the State of *217New York may maintain an action to set aside instruments, executed after the death of their father, between their mother, individually and as one of his executors, and the surviving partner, individually and as another of such executors, by which instruments the infants claim to have been defrauded, and which they assert were procured by the surviving partner by his misrepresentations and by his taking advantage of the ignorance of their mother.

2. Partnership — Partner entitled to inspect books.

A partner, or those representing him, is entitled at any stage of the action, to an inspection of the firm books, whether located within or without the State of New York.

3. Merits not tried on affidavits.

Where the mother of the infants moved, upon her own part, to have the said instruments set aside, the court refused to try on affidavits the question whether she had estopped herself by acquiescence.

Motion for an order directing the defendants Fleischmann other than the defendant Johanna Fleischmann, to produce and give to plaintiffs an inspection and permission to take a copy of ali the hooks, etc., .of the firms of Gaff, Fleischmann *&*Co. and Fleischmann & Co. Motion by plaintiffs that .the books referred to be deposited with the county clerk, with leave to them to inspect them, or that said defendants give to plaintiffs an inspection with permission to take a copy of the same. Also motion to set aside and declare void and fraudulent as against plaintiffs, two instruments executed between Johanna and Charles Fleischmann, individually, and as executrix and executor of the will of Maximilian Fleischmann dated October 25, 1890, and September 1, 1893.

Sackett, Bacon <& McQuaid, for guardian *ad Utem*of infant plaintiffs.

Henry W. Sackett (Bronson Winthrop, John E. Parsons, Lewis C. Ledyard), of counsel, guardian *ad Utem.*

C. Bainbridge Smith, for certain defendants.

Rastus S. Ransom, George B. Lester, W. W. Vaughan, for other defendants.

Lawiíexce, J.

There are two motions in this case. The first is for an order directing the defendants Fleischmann other than *218the defendant Johanna Fleischmann to produce and give to the plaintiffs an inspection and permission to take a copy of all the hooks, entries, accounts, vouchers and other documents of the firms of Gaff, Fleischmann *&*Go. and Fleischmann & Go., relating to the business of said firms, known as the business east of the Allegheny mountains, the principal office of which was located in the city of New York, and the business known as the business west of the Allegheny mountains, the principal office of which was located in the city of Cincinnati, and all books and documents of the business now carried on by the said defendants individually or as executors of Charles Fleischmann, deceased. It is moved by the plaintiffs that the books referred to be deposited with the county clerk with leave to them to inspect them, or that said defendants give to the plaintiffs an inspection with permission to take a copy of the same', and that a similar inspection be granted of the books in Cincinnati and Buffalo. The books sought to be inspected are set forth in detail in the motion papers. ’ The action is brought to determine and settle the rights of all parties to the assets of Fleischmann & Co., for an accounting of the dealings between Charles Fleischmann and Maximilian Fleischmann, deceased, as partners, prior to October 9, 1890, and to have two instruments executed between Johanna Fleischmann and Charles Fleischmann, individually and as executrix and executor of the will of Maximilian Fleischmann, dated October 25, 1890, and September 1, 1893, set aside and declared void and fraudulent as against the plaintiffs, and for other and further relief. The second motion is made by the defendant Johanna Fleischmann, who, it is alleged in the complaint, has declined to bring a suit as executrix of Maximilian Fleischmann to have said instruments set aside. By the will of Maximilian Fleischmann his residuary estate was to be divided according to the Statute of Distributions, and the plaintiffs are his infant children. The motions are resisted on the grounds, first, of *laches; second,*that the preliminary question as to the agreements should first be tried; *third,*that the facts alleged do not entitle the plaintiffs to discovery under rules and decisions; *fourth,*that acquiescence for years by Johanna Fleischmann in all the agreements, and delay in asserting her rights preclude her from malting the motion; *fifth,*that the action cannot be maintained by the plaintiffs. As to this last point it would appear that the question should have *219been raised by demurrer. Assuming for the purposes of disposing of that question that all that the plaintiffs state is true, and such assumption must be made, it seems that such an action can be maintained. The substance of the complaint is that the plaintiffs, as beneficiaries under the will of Maximilian Fleischmann, have been defrauded of their rights by reason of the agreements and acts referred to in the complaint alleged to have been obtained by Charles Fleischmann by his misrepresentations and by taking advantage of the ignorance of their mother. I think that this answer to the motion of the plaintiffs must be disregarded. The acquiescence of Johanna Fleischmann would be an answer to her motion if she were fully apprised of all the facts and there was no concealment practiced by Charles Fleischmann. This she alleges, and this his executors deny. The question should not be disposed of on a motion. It is further said by the defendants that the plaintiffs have been guilty of *laches*in making this motion, because the action became at issue on November 1Y, 1899, was noticed for trial for the December term, and called upon the Friday’s calendar for February 3, 1900, and then set down for trial for February ninth, and actually reached on March 9, 1900. Moran v. Vreeland, 29 App. Div. 243, is cited in support of this contention by the defendants. It will be found on examining that case that it was not analogous to this, because there were no circumstances in that case which excuse the apparent *laches.*The plaintiffs here had served a subpoena *duces tecum*on Julius Fleischmann, one of the defendants, directing him to produce the books. Before the return day of the subpoena there was a consultation between counsel, in which it was suggested that, as the books sought for were so great in number, and as their removal from the west would practically break up the business, it would be better to send an expert accountant to Cincinnati to take extracts from the books. ‘ This plan fell through and Julius Fleischmann failed to appear on the return of the supbcena. These facts re"fute the charge of *laches*on the part of the plaintiffs in making this motion. It is also contended by the defendants that the preliminary question as to the agreements should first be tried. The evidence sought, as I understand the plaintiffs, is to enable them to show improper conduct on the part of Charles Fleischmann and to prove on the trial that the agreements referred to in the complaint should be set aside. Lastly, it is said that the *220ease is not brought within the rules and the authorities on the subject of inspection of books and documents. I do not concur in this view. This is a case involving transactions between partners and their representatives. The rule in such cases was laid down by Walworth, Chancellor, in Kelly v. Eckford, 5 Paige, 548. At page 550, the chancellor says: “ In such cases it is the constant and uniform practice of this court, upon the application of either party, and in any stage of the suit, to order the adverse party to deposit any of the partnership books and papers, which belong equally to both, in the hands of an officer of the court, for the examination and inspection of the adverse party; and to permit copies thereof to be taken by the several partners or their representatives. * * * In a court of law it is a matter of course to compel one party, who has the possession of a document which belongs equally to both, to produce the same for the inspection of his adversary, for the purposes of the suit.” In Stebbins v. Harmon, *17*Hun, 445, it was held that, *“*In an action between partners for an accounting, either is entitled, at any stage of the action, to an order requiring the production of all partnership books, and the papers and accounts relating thereto, and their deposit with the clerk to be inspected and copied.” And the court there says, at page 447: “ It is argued by the appellant’s counsel that as the respondent has set out in his petition the facts upon which he relies as a defense to the counterclaim, it is apparent that he does not need an inspection of the books and papers to enable him to prepare his reply. The answer to that argument is that the production of partnership books and papers will be compelled, on the application of either party, in any stage of the suit.” See, also, Livingston v. Curtis, 12 Hun, 121; Martine v. Albro, 26 id. 559; Veiller v. Oppenheim, 26 N. Y. Supp. 1051. In Zimmerman v. Dieckerhoff, 12 N. Y. St. Repr. 613, the court says: “ In no view should the defendants be permitted to conceal or withhold any information from the plaintiffs- derivable from the books of account, letters or papers of the firm. The plaintiffs are executors and have no personal knowledge of the transactions involved in this action: They now claim a large balance due their testator from the defendants, which they say will be exhibited and verified by the books of the firm, while the defendants claim a falsification of the same books by the deceased partner. Hothing can tend more to the *221elucidation and settlement of such controversy than an examination of the books themselves, and in the interest of justice the fullest latitude and scope should be allowed on such examination.” In such an action as this the court has also the power to order an inmection of books in another State: Holly Mfg. Co. v. Venner, 86 Hun, 42. Enough, I think, is shown in the moving papers to bring this case within the General Bules (14 and 15) of the court. The granting of such orders is largely discretionary, and such discretion should be liberally exercised to enable parties to properly prepare for trial. Hunt v. Ogdensburg & Lake Champlain R. R. Co., 69 Hun, 497; Finlay v. Chapman, 119 N. Y. 404. The motions will, therefore, be granted to the extent indicated in this opinion, and the orders to be entered herein will he settled on two days’ notice. Ten dollars costs to the plaintiffs.

■ Motions granted to extent indicated, with ten dollars costs to plaintiffs.