Beeman, Matter of

• Decision Date: 14 February 1985
• Citation: 108 A.D.2d 1010,485 N.Y.S.2d 396
• Parties: In the Matter of the Intermediate Accounting of Lyman A. BEEMAN, as Trustee of a Trust Made By Charlotte P. Hyde et al., Respondent. Mary Whitney Renz et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 396

485 N.Y.S.2d 396

108 A.D.2d 1010

In the Matter of the Intermediate Accounting of Lyman A. BEEMAN, as Trustee of a Trust Made By Charlotte P Hyde et al., Respondent Mary Whitney Renz et al., Appellants.

Supreme Court, Appellate Division,

Third Department.

Feb. 14, 1985.

McGinn & Brown, P.C., Albany (Robert M. Brown, Albany, of counsel), for Mary Whitney Renz, appellant.

Caffry, Pontiff, Stewart, Rhodes & Judge, P.C., Glens Falls (H. Wayne Judge, Glens Falls, of counsel), for Louis H. Whitney, appellant.

Wilson S. Mathis, Glens Falls, for Louis H. Whitney, II, appellant.

Bouck, Holloway, Kiernan & Casey, Albany (Francis J. Holloway, Albany, of counsel), for Samuel P. Hoopes and another appellant.

De Graff, Foy, Conway, Holt-Harris & Mealey, Albany (Mike Wallender, Albany, of counsel), for Peter J. Bruno and another respondent.

Mc Phillips, Fitzgerald, Meyer & Mc Lenithan, Glens Falls, for respondent.

Before CASEY, J.P., and WEISS, MIKOLL, LEVINE and HARVEY, JJ.

WEISS, Justice.

Appeals from an order of the Supreme Court at Special Term, entered January 17, 1984 in Warren County, which, in a proceeding pursuant to CPLR article 77, inter alia, denied respondents' motion to compel petitioner to answer certain questions posed at his oral deposition.

The instant proceeding concerns three inter vivos trusts executed simultaneously in 1954 by Charlotte P. Hyde, Nell P. Cunningham and Mary H. Beeman, the corpus of which constitutes the majority of voting stock in a closely held corporation, Finch, Pruyn & Company, Inc. The settlors named both Mary H. Beeman and petitioner as trustees. In August of 1979, the trustees commenced a proceeding for an intermediate accounting of the 1954 trusts. As part of the settlement of that accounting and earlier litigation commenced in the United States District Court for the Northern District of New York (see Renz v. Beeman, 2nd Cir., 589 F.2d 735, cert. denied 444 U.S. 834, 100 S.Ct. 65, 62 L.Ed.2d 43), an agreement was reached in which Mary H. Beeman agreed to resign as trustee and the total number of trustees was increased to five, including petitioner. It was further agreed that in the event petitioner resigned, Mary H. Beeman reserved the right to designate his successor. The intermediate accounting covering the period from 1954 through October 1, 1981 was judicially approved in February 1982.

On August 16, 1982, petitioner submitted his written resignation as trustee, and Mary H. Beeman designated Peter J. Bruno as his replacement. In October 1982, petitioner again tendered his resignation upon counsel's suggestion that the initial resignation was ineffective, and Mary H. Beeman again appointed Bruno as his successor. In the meantime, by petition dated September 10, 1982, petitioner commenced proceedings for an intermediate accounting from October 1981 to the date of his August 1982 resignation. After respondents, beneficiaries of the 1954 trusts, appeared and served notices to take depositions upon oral examinations, petitioner unsuccessfully moved to discontinue the proceedings. Respondents' cross motions to compel petitioner's compliance with the motions to conduct oral examinations was granted (CPLR 3107, 3124, 7701). At the deposition, petitioner refused to answer numerous questions concerning his activities as an officer and director of the corporation, and the circumstances attendant his resignation, as well as the appointment of his successor. After respondents moved by order to show cause to compel petitioner to answer, Special Term concluded that the scope of the examination extended only to acts of petitioner in his capacity as a trustee relating to the items in the account. This appeal by respondents is limited solely to the January 17, 1984 order of Special Term limiting the scope of the examination before trial of petitioner. We reject respondents' urging that we review other orders and the judgment of September 2, 1981, none of which were appealed.

Initially, we note that rulings affecting the scope of pretrial examinations are not appealable as of right even if reduced to the form of an order (CPLR 5701 D. Siegel, Handbook on New York Practice § 526, at 723 ). Since respondents did not seek permission to appeal the order which simply refused to compel answers to certain questions in an examination before trial, the appeal should be dismissed (see Smith v. Colonie...