Bolten v. Wemett , 159 N.Y.S.2d 757 ( 1957 )

We deem this action to replevin personal property, the corpus of an inter vivos trust, prior to an accounting, to 'be premature, because of the right of the trustee or his legal representative to have an adjudication that the trust has terminated and to have his accounts judicially settled and to be discharged before relinquishing control of the trust property {Matter of Jones, 306 N. Y. 197, 205; Neary v. City Bank Farmers Trust Co., 260 App. Div. 791, 793). Although the respondents did not ask for summary judgment at Special Term, they may nevertheless be entitled to that relief if the evidentiary facts show their denials or defenses are sufficient to defeat plaintiff’s cause of action (Rules Civ. Prae., rule 113; Anderson v. City of New York, 281 App. Div. 539, 5'41, affd. 306 N. Y. 803). We find the evidentiary facts adduced on this motion are sufficient to defeat plaintiff’s cause of action. Order denying plaintiff’s motion for summary judgment unanimously modified by directing summary judgment to be entered in favor of the defendants and, as so modified, affirmed, without costs. This disposition is without prejudice to an action or a proceeding to compel an accounting if plaintiff is so advised. Settle order on notice dismissing the complaint in accordance with the above memo and severing counterclaim. Concur — Botein, J. P., Rabin, Frank, Valente and McNally, JJ.