SECOND DEPARTMENT, JULY TERM, 1903. [Vol. 86. saw him. She did not direct him to draw a will. He did not witness any will for her. She did not have any transactions of any kind with the plaintiff. He did not witness any will for her." Held, that the affidavit was not evidence to establish that the decedent did not execute the will. APPEAL by the proponents, Charles J. Morton, Jr., and another, from a decree of the Surrogate's Court of the county of Kings, entered in said Surrogate's Court on the 7th day of October, 1902, adjudging and decreeing that the paper propounded as the last will and testament of Anna Eliza (McCreddon) Lawlor, deceased, is null and void, with notice of an intention to bring up for review an order of said court made on the 25th day of November, 1902, denying the appellants' motion for a new trial. To attack the validity of the will offered for probate in this matter the contestants, who are the respondents, offer in evidence an affidavit purporting to have been made by the decedent July 23, 1902, which had been made for the purpose of opening a default in the action, brought by the lawyer who drew and attended to the execution of the will in question, to recover for his services concerning the same. This affidavit was signed by the mark of the testatrix, which was witnessed by the notary before whom the affidavit was executed. The affidavit contained the following statement: "Deponent does not know the plaintiff herein and never saw him. She did not direct him to draw a will. He did not witness any will for her. She did not have any transactions of any kind with the plaintiff. He did not witness any will for her." This affidavit was objected to on the ground that it did not come from the proper custody, that it was incompetent, irrelevant and immaterial, but it was admitted in evidence by the surrogate, to which an exception was taken. Francis A. McCloskey and Charles H. Levy, for the appellants. Moses Weill, for the respondents. JENKS, J.: The affidavit of the testator, made on July 23, 1902, was not evi dence to establish that she did not make the will dated June 4, 1902. (Jackson v. Kniffen, 2 Johns. 31, 35; Waterman v. Whitney, 11 N. App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. Y. 157; Eighmy v. People, 79 id. 546; Marx v. McGlynn, 88 id. 357, 374; Matter of Kennedy, 167 id. 163, 172; Matter of Woodward, Id. 29, 30.) It is quite evident from the opinion that the learned surrogate considered this affidavit as a cogent piece of evidence on that question. The exception was well taken, and the decree must be reversed. GOODRICH, P. J., BARTLETT, WOODWARD and HOOKER, JJ., concurred. Decree of the Surrogate's Court of Kings county reversed. GEORGE M. Kurz, Appellant, v. LEONHARD HESS, SR., Respondent, Impleaded with BERNHARD FABER, Defendant. Guardian's sureties — when they may be sued, although proceedings for an account have not been instituted against the guardian. Compliance with the rule that an action cannot be maintained against the sureties on the bond of a general guardian, until proceedings for an accounting have been had against the general guardian and his default established therein, will be excused where it appears that the guardian is insolvent and has absconded from and permanently left the State of New York; that the plaintiff has been unable to ascertain his whereabouts or serve him with process, and that it is impossible for the plaintiff to obtain a judicial settlement of the guardian's accounts. APPEAL by the plaintiff, George M. Kurz, from a judgment of the Supreme Court in favor of the defendant, Leonhard Hess, Sr., bearing date the 12th day of March, 1903, and entered in the office of the clerk of the county of Kings upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff's complaint. Charles J. McDermott, for the appellant. Henry E. Wilke, for the respondent. HOOKER, J.: Plaintiff attained full age shortly before the commencement of this action. Defendants are the sureties who, with their principal, the guardian of the person and estate of the plaintiff, executed their APP. DIV.-VOL. LXXXVI. 34 SECOND DEPARTMENT, JULY TERM, 1903. [Vol. 86. certain bond conditioned that the guardian should in all things faithfully discharge the trust imposed in him as guardian, and obey all lawful directions of the surrogate touching the infant's estate. The complaint alleges that the guardian failed in his execution of the trust imposed in him and that he collected certain moneys which he has appropriated to his own use. Paragraph 5 of the complaint is as follows: "That on or about the 20th day of July, 1902, the said William Schneckenberger became insolvent and absconded from the State of New York, * * * and that although the plaintiff has attempted to obtain a judicial settlement of the account of the said William Schneckenberger as such guardian, and has attempted to ascertain the whereabouts of said William Schneckenberger and to serve upon him due process of the Surrogate's Court of the County of Kings, which is the court having jurisdiction of his appointment, the plaintiff has been unable and will be unable, and that it is impossible for the plaintiff to obtain an account as guardian from the said William Schneckenberger and compel him to judicially settle his account as such general guardian, and that said William Schneckenberger is insolvent, and that the plaintiff is without any means of obtaining redress from the said Schneckenberger for the conversion of said moneys on account of the departure of said Schneckenberger from the State of New York." The case having been called for trial the attorney for the answering defendant moved to dismiss, on the ground that no action will lie against the bondsman of the guardian unless there has been an accounting, and on the ground that the complaint does not state facts sufficient to maintain the action. The motion was granted, and plaintiff excepted. The court is obliged, of course, in passing upon this appeal to assume the truth of all the facts stated in the complaint, as well as every reasonable inference and intendment that may be drawn therefrom. (Ketchum v. Van Dusen, 11 App. Div. 332; Kain v. Larkin, 141 N. Y. 144.) The rule that an action cannot be maintained against the sureties on the bond of a general guardian until proceedings for an accounting have been had against the guardian and his default established therein, has been the established law of this State for some years. (Hood v. Hood, 85 N. Y. 561; Perkins v. Stimmel, 114 id. 359.) It has been held, however, that there may be proper exceptions to this general rule App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. and that where it appears "that an accounting is impossible or impracticable" the courts will suspend the rigor of that rule and allow an action in equity to be maintained to establish the extent of the liability and charge the sureties. (Otto v. Van Riper, 164 N. Y. 536; Haight v. Brisbin, 100 id. 219; Long v. Long, 142 id. 545.) If the allegations of the complaint in this case are to be taken as admitted upon the motion to dismiss, granted at the commencement of the trial, this exception to the rule is strongly applicable here. The guardian became insolvent; he absconded and has permanently left the State; the plaintiff has attempted to obtain a judicial settlement and has attempted to ascertain the guardian's whereabouts and serve him with process, but has been unable and will be unable and it is impossible for him to obtain an accounting from the guardian as such, and he is without any means of obtaining redress from the guardian on account of the reversion of his moneys. It is difficult to imagine how, if the proofs had sustained these allegations, a much stronger case within the exception could have been made out, and plaintiff would have been entitled to relief. Much the same question has been discussed upon demurrer in Scharmann v. Schoell (23 App. Div. 398) by Mr. Justice INGRAHAM, and the same conclusion was reached. The judgment should, therefore, be reversed and new trial ordered. GOODRICH, P. J., WOODWARD and HIRSCHBERG, JJ., concurred. Judgment reversed, with costs. THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. THOMAS F. CORBALIS and Others, Respondents. Selling pools on a horse race — ·when an indictment therefor sufficiently states the crime and the acts constituting it when it is not defective for duplicity—if the defendant is not advised with sufficient definiteness of the acts with which he is charged, he should apply for a bill of particulars. An indictment charging the defendants with the crime of pool selling in viola tion of section 351 of the Penal Code consisted of two paragraphs. The 1st paragraph alleged that the grand jury accused the defendants "of the crime of feloniously, outside of any trotting course, race course, authorized by or enti SECOND DEPARTMENT, JULY TERM, 1903. * * * [Vol. 86. tled to the benefits of Chapter 570 of the Laws of the State of New York for the year 1895, as amended by Chapter 446 of the Laws of the State of New York for the year 1897, engaging, assisting, aiding and abetting in pool selling, and selling pools upon the result of a trial of and contests of, speed and power of endurance of beasts, committed as follows." The 2d paragraph of the indictment charged that the defendants, on a specified day, at a specified place, “did feloniously cutside of a trotting course, race course authorized by and entitled to the benefits of Chapter 570 of the Laws of the State of New York, for the year 1895, as amended by Chapter * * * 446 of the Laws of the State of New York, for the year 1897, engage, aid, assist and abet in pool selling and selling pools upon the result of a trial and contest of speed and power of endurance of beasts, to wit: horses, on the nineteenth day of January in the year nineteen hundred and three, taking place, being conducted and had at Oakland in the State of California and New Orleans in the State of Louisiana." Held, that the indictment was not demurrable upon the ground that it did not comply with the rule that an indictment must first state the crime and then the acts constituting the crime; That the crime was sufficiently charged in the 1st paragraph of the indictment, and that the acts constituting the crime were sufficiently charged in the 2d paragraph thereof; That if the defendants believed that they were not sufficiently advised by the indictment as to the particular facts which would be proved against them, it was their duty to apply for a bill of particulars; That the indictment was not invalid for duplicity. APPEAL by the plaintiff, The People of the State of New York, from an order of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 11th day of May, 1903, sustaining the defendants' demurrer to an indictment against them charging them with the crime of pool selling, in violation of section 351 of the Penal Code, and directing that the charge be resubmitted to the grand jury. The indictment demurred to was as follows: "The Grand Jury of the County of Westchester by this indictment accuse Thomas F. Corbalis, John H. Hanratty, Michael Devanney, Thomas Kelly, Sylvester Smith and John Burnes of the crime of feloniously, outside of any trotting course, race course, authorized by or entitled to the benefits of Chapter 570 of the Laws of the State of New York for the year 1895 entitled 'An Act for the incorporation of Associations for the improvement of the breed of horses and (to) regulate the same and to establish a State Racing Commission' as amended by Chapter 446 of the Laws of the State |