#### James J. Richards, Jr., Respondent, *v.*John R. Greason, Jr., as Sole Executor, etc., of James J. Richards, Deceased, Appellant.

First Department,

October 23, 1908.

Heading — action against representative for fraud of testator—reply to separate defense required.

Where an executor sued by an heir for the fraud of his testator has alleged as a separate defense that on the settlement of a prior action the plaintiff agreed with the testator as to their respective interests in the property of which he claims to have been defrauded, and that upon an accounting of a trustee, of such property,.to which the plaintiff was a party, a conveyance thereof was proved by the testator, and the surrogate decreed with the approval of the plaintiff that the trustee pay the same to the testator, etc., the court under the discretionary power conferred by section 516 of the Code of Civil Procedure should require the plaintiff to reply to the defense; the matters being peculiarly within his knowledge and not within the personal'knowledge of the representative.

Appeal by fhe defendant, John R. Greason, Jr., as sole executor, etc., from an order of the Supreme Court, made at the New York *321Special-Term and entered in the office of the clerk of the county of New York on the 25th day of June, 1908, denying the defendant’s motion to require the plaintiff to reply to the new matter set up in the amended answer.

*Jacob H. Shaffer*of counsel *[Goeller, Shaffer & Eisler,*attorneys], for the appellant.

*Raphael Link*of counsel [ *Wetherhorn*& *Link,*attorneys], for the respondent.

Clarke, J.:

The plaintiff brings an action against the executor of his father’s estate to recover $30,000 for a fraud claimed to have been committed upon him by the defendant’s testator in his lifetime. The complaint alleges that the father of the plaintiff died on or about July 18, 1907, leaving a last will and testament which was duly probated about the 9th of October, 1907, which named the defendant as executor and who thereafter received letters testamentary; that on or about November 17, 1898, one George W. Hojer, a maternal grandfather of the plaintiff, died leaving a will wherein a two-ninths share of his estate, the value of which was about $60,000, was devised and bequeathed to plaintiff; -that about--November 21, 1903, the plaintiff, induced by the false representations of his father that a certain paper was merely a power of attorney to transact and attend to matters relating to the estate of said George W. .Hojer, was induced to sign, execute and deliver said paper which contained, in addition to the power of attorney, an assignment and transfer of a one-half share of his interest in his grandfather’s estate amounting in value to the sum of $30,000 ; that by reason of said paper his father was enabled to collect and receive a one-half share of plaintiff’s interest in said estate amounting to said sum, which he now seeks to recover from the executor.

The answer, by way of a separate and distinct defense, alleges that the plaintiff commenced an action in partition on the 25th of January, 1905, of the real property left hy his grandfather in which action his father, James J. Richards, Sr., was made a party defendant, and that in said action said Richards, Sr., appeared and served a demurrer; that on or about the 15th of February, 1905, *322plaintiff served' upon his father a revocation of the power of attorney embraced in the instrument of November 21, 1903, a copy of the last above mentioned instrument and of the revocation, attached to the answer; that on or about the 30th of June, 1905, the said partition action was settled and agreements were entered into between the plaintiff and his father and the Julian Company, the corporation mentioned in said agreements, wherein and whereby the said Julian Company contracted to acquire the interest of the plaintiff and his father in the. said real property which was the subject of the partition action; that as part of the settlement of said action, the said plaintiff insisted on receiving from his father an agreement to deliver to plaintiff ■ on the closing of title under said contract a general release of all claims and demands which his father might have against plaintiff; that at the time of said settlement the plaintiff was represented by an attorney who was present and negotiated the settlement on behalf of the plaintiff who was ' also present at said time. Copies of all of these papers are attached to the answer; that thereafter and on the 30th of September, 1905, a further agreement was entered into by plaintiff and his father,. plaintiff’s attorney and himself being present, which is also attached to the answer; that thereafter and in accordance with the terms of said agreements the title to the premises therein described was closed on or about the 12th of January, 1906, which closing the plaintiff attended with his attorney, and the amount due each respectively was determined, and there was paid to each the sum of $18,737.38 for. their respective interests, to which payment plaintiff assented and agreed, and his father delivered the general release in accordance with' his agreement; that on the- 29th of September, 1905, the trustee under the last will and testament of plaintiff’s grandfather presented his petition to the Surrogate’s Court in the county of Kings, together.with his final account, and in such proceedings the plaintiff was made a party and duly appeared; that Richards, Sr., and others filed answers, and the issues raised by such answers came on for hearing on the 31st day of October, 1905, and on that day plaintiff’s father duly proved in said proceeding the said assignment or conveyance, being the .paper which the plaintiff here claims was fraudulently obtained from him.; that the only basis for any interest of the plaintiff’s *323father in and to the moneys affected by the said accounting was the said paper; that thereafter and on or about the 14th day of December, 1905, a decree was made in said proceeding, a copy of which is annexed to the answer; that in accordance with the terms of said decree the trustee paid over to plaintiff’s father the sums in said decree so mentioned, said payment being made and such decree entered with the consent and approval of the plaintiff; and the answer further alleges that by reason of the foregoing the said plaintiff ratified and approved the assignment mentioned in the complaint herein, and waived such fraud as alleged in the complaint, if any there were.

The defendant moved that the plaintiff be compelled to reply to the matters so set up in the separate defense which he claimed established a complete waiver by the plaintiff of any fraud as set up in the complaint. The learned Special Term having denied the motion, the defendant appeals.

Section 516 of the Code of Civil Procedure provides that “ Where an answer contains new matter constituting a defence by way of avoidance, the court may, in its discretion, on the defendant’s application, direct the plaintiff to reply to the new matter.”

It would seem that where an executor, who can have no personal knowledge of transactions involved, is sued for a fraud alleged to have been committed by his'decedent in his lifetime, in his defense sets up the orders and decrees of the courts made in proceedings in which plaintiff and decedent were parties, and a series of sealed instruments duly executed and acknowledged by the plaintiff, based upon the validity of the instrument attacked, which proceedings, orders, decrees and instruments tend to establish knowledge and affirmance, and upon which, with such knowledge and affirmance, large sums of money have been paid and received, he is entitled to know before the trial how the plaintiff proposes to meet such a defense. These matters must be entirely within the knowledge of the plaintiff, and copies of the papers relied upon are attached to the answer, and the matters relied upon are stated with such particularity as to be readily met and answered,- if answer there be.

We are of the opinion that a case is presented clearly within the provisions of the section of the Code giving authority to compel a reply, and that in the exercise of a sound discretion the motion should have been- granted.

*324It, therefore, follows that the order appealed from should be reversed, with ten dollars costs, and the motion granted, with ten dollars costs and disbursements to the appellant.

Patterson, P. J., Ingraham, Laughlin and Scott, JJ., concurred.

Order reversed, with teu dollars costs and disbursements, and motion granted, with ten dollars costs.