on the 4th day of September, 1895, and the issuance of letters of administration to her, she has filed no inventory, no notice to creditors, and no accounting of her proceedings as administratrix, in the office of the surrogate's court in this county, nor has she procured her accounts as such administratrix to be judicially settled; that said Moore at the time of his death held the title to two pieces of real estate situated in the city of New York. Then follows a description of the property, which was situated as follows: One lot on the southwesterly corner of Pearl and Platt streets, and one lot on the southerly side of Stone street; the first piece of property being known as "No. 121 Pearl Street," and the second as "No. 10 Stone Street." It is further alleged that the premises above described were wholly or in part purchased with the money of the plaintiff, then held by the said Gideon E. Moore in a fiduciary capacity, and that the title thereto was taken by the said Gideon E. Moore in his own name, without the knowledge or consent of the plaintiff. The plaintiff therefore prays "that an accounting may be had between the plaintiff and the defendant, as administratrix with the will annexed of the goods, chattels, and credits of Gideon E. Moore, deceased, and that plaintiff may have a judgment against her, as such administratrix, for the amount found due upon such accounting, or that an accounting may be had between the plaintiff and the defendant, and that the interest of the plaintiff in the said real property may be established, and that the plaintiff have judgment directing the defendant to convey to her the said real property, or that an accounting may be had between the plaintiff and the defendant, and that the plaintiff have judgment directing that a sale of the said real property be had, and that payment be made to the plaintiff out of the proceeds of said sale of the amount of the plaintiff's money held by said Moore in a fiduciary capacity, and by him invested in the said real property, with interest, and that the plaintiff have judgment against the defendant as administratrix, etc., for any deficiency arising from such sale, and such other and further relief as to the court may seem just." The first allegation of the complaint, in reference to the money in the hands of the decedent, is denied by the answer. The allegations of the complaint as to the death of Moore, the probate of the will, and the issuance of letters of administration with the will annexed to the defendant, and as to the legal title of the premises being vested in her individually, are also admitted by the defendant, but the remainder of the allegation, numbered as second, is denied. The allegation in paragraph 3 in said complaint, that decedent left no books of account, etc., is denied, but as to the remainder of said paragraph the defendant alleges that she has no knowledge or information sufficient to form a belief. It is admitted that the defendant has not filed an inventory or judicially settled her accounts, and it is alleged affirmatively that the plaintiff applied to the surrogate's court to compel the defendant to file an inventory and an account, and that said application was denied. It is admitted that Moore at the time of his death held the title to the two pieces of real estate described in the complaint, but it is denied that the premises were wholly or in part purchased with money of and 100 New York State Reporter the plaintiff, held by Gideon E. Moore in a fiduciary capacity. The six-years statute of limitations is also pleaded, and as a separate defense the defendant alleges that the plaintiff has an adequate remedy at law. It is shown, either by the proofs or by the admissions contained in the defendant's answer, that Gideon E. Moore died on the 13th day of April, 1895, and that previous to that time he was, and for a considerable number of years had been, a resident of New York City, where he conducted the business of a chemist; that the plaintiff was his mother, and at the time of his death was 84 years old, and resided in Dresden, Saxony; that the decedent held in his hands a considerable amount of money, derived from different sources, belonging to the plaintiff; and that in a letter written by him to the plaintiff April 25, 1890, he made a statement to her of the manner in which he had invested her funds. In this letter he inclosed a formal statement of account, showing that the amount with which the plaintiff was credited by him on April 21, 1890, was $14,311.08; also, that Gideon E. Moore left a will by which the defendant, his widow, was made the sole legatee and devisee, and that no mention was made in this will of his obligations to the plaintiff. This will was admitted to probate on June 24, 1895. On August 17, 1895, this action was begun against the defendant individually and as temporary administratrix, the complaint containing the prayer for relief already referred to. On September 4, 1895, letters of administration, with the will annexed, were issued to the defendant, the widow of Gideon E. Moore. 2. I think the counsel for the plaintiff is right in his contention that the uncontradicted evidence shows that the decedent, Gideon E. Moore, had in his possession a large amount of money belonging to the plaintiff, and that such evidence proves that a fiduciary relation existed between him and the plaintiff in respect to that money. 3. I think, also, that it is clear that the plaintiff has shown tha there was a balance in the hands of the defendant on the 21st of April, 1890, amounting to $14,311.08, for which amount the plaintiff is entitled to judgment against the defendant as administratrix. It will be noted by reference to the testimony that the defendant introduced no evidence upon the trial, and there is nothing to show that the amount admitted to have been in the hands of Moore at the time he wrote the letter to his mother was ever repaid to her. 4. It is contended upon the part of the defendant that the case as proven is not one for equitable cognizance, and that the plaintiff has an adequate remedy at law. The case as stated in the complaint was one for equitable cognizance, and the simple fact that an accounting has been rendered unnecessary by the failure of the defendant to produce any evidence upon the trial should not induce the court to dismiss this action on that ground. I think the case fairly falls within that class of cases of which Bell v. Merrifield, 109 N. Y. 202, 16 N. E. 55, is an example. In that case it was held that: "The formal relief asked in a complaint is not controlling in determining the nature of the action, and where an answer is interposed the court will grant the judgment which shall be consistent with the case made by the complaint and embraced within the issues, if sustained by the evidence, irrespective of the relief demanded." In that case, Justice Peckham, in delivering the opinion of the court (page 207, 109 N. Y., and page 56, 16 N. E.), says: "At any rate, all the facts necessary to make out a cause of action of an equitable nature are alleged in the complaint, and they are not such as are merely incidental to another and totally different cause of action. Such was the case of Barnes v. Quigley, 59 N. Y. 265. An answer having been interposed in this case, the formal relief asked in the complaint is not of much importance, and the court will grant the judgment which shall be consistent with the case made by the complaint and embraced within the issues. Hale v. Bank, 49 N. Y. 626. The mere fact that the complaint asks for a money judgment does not necessarily show that the case is one for trial by jury. Courts of equity give judgment for money only, where that is all the relief needed. Murtha v. Curley, 90 N. Y. 372. And if facts are stated in a complaint which show that it is of an equitable nature, and that the cause of action is simply equitable, we do not think that a case is made for a trial by jury under the Code (section 968), merely because the complaint improperly asks for a money judgment only." See, also, Pendergast v. Greenfield, 127 N. Y. 23, 27 N. E. 388; Gilbert v. Morrison, 53 Hun, 446, 6 N. Y. Supp. 491. 5. Plaintiff desires to waive her right to an accounting, and, as her counsel states in his brief, to stand upon the balance shown in Exhibit B, as being on April 21, 1890, in the hands of Gideon E. Moore, namely, $14,311.08. A waiver is desired, as counsel states, (1) because the remedy of the plaintiff is sufficient without it, the balance being undisputed, and no payments having been made to the plaintiff since the date of the account; (2) an accounting would be an expensive proceeding, and further diminish the funds of the estate, which even now are insufficient to pay the plaintiff's claim; (3) an accounting would produce delay; and (4) in the end would result in the balance shown by Exhibit B. These reasons commend themselves to my mind, and I think the waiver should be allowed. Counsel also states in his brief that for the same reason the plaintiff waives her claim against the real property purchased with the plaintiff's money, and by the will devised to the defendant individually, and consents to a dismissal of the action, without costs, as against the defendant individually. This, I think, should also be allowed. See Code Civ. Proc. 3229; Frazer v. Hunt, 18 Wkly. Dig. 390; Sawyer v. Thurber, 14 Civ. Proc. R. 205. 6. The six-years statute of limitations does not apply. The account, Exhibit B, is dated April 21, 1890, and this action was begunon the 17th of August, 1895. Under the decision of this court in the case of De Crano v. Moore, 50 App. Div. 361, 64 N. Y. Supp. 5, 7, which is not yet reported in the regular series of the appellate division, which was an action brought by a sister of the decedent against the same defendant, the court say: "Indeed, it may be doubtful whether the statute of limitations had commenced to run at all. The transaction was either a deposit of money to be paid upon demand, or it was a deposit of money to be held and invested by the depositary as trustee. If the transaction was of the character first mentioned, the statute could only be set running by a demand; and, if it was of the latter character, the statute would only commence to run after it had been ascertained that the depositary had converted the money to his own use." 7. The objections taken to the depositions were made too late. Wright v. Cabot, 89 N. Y. 570; Newton v. Porter, 69 N. Y. 133. and 100 New York State Reporter am of the opinion that the plaintiff is entitled to judgment against the defendant, as administratrix, in the sum of $14,311.08, with interest at 6 per cent. from April 21, 1890, with the costs and the usual allowance. Judgment for plaintiff, with costs. (32 Misc. Rep. 41.) In re STUMPP et al. (Queens County Court. June, 1900.) 1. MUNICIPAL COURTS-JUDGMENT-TRANSCRIPT-EXECUTION. Greater New York Charter, § 1369, provides that all provisions of law relating to judgments, transcripts, docketing, executions, etc., in force December 31, 1897, shall govern the same in municipal court. Code Civ. Proc. § 3220, declared that a judgment docketed by the clerk of the county of New York on a transcript of a judgment of a district court of the city and county of New York should be deemed a judgment of the supreme court, and that an execution thereon should issue out of the supreme court. A judgment rendered against defendant in the municipal court of the city of New York was docketed with the clerk of the county of New York. A transcript of the judgment thus docketed was filed, and judgment docketed thereon, in Queens county. Held, that the judgment thus docketed in Queens county would still be deemed a judgment of the supreme court. and that execution should issue therefrom. 2. EXECUTION-SUPPLEMENTARY PROCEEDINGS-AFFIDAVIT. Where a transcript of a judgment rendered by the municipal court of New York City was filed and judgment docketed with the clerk of New York county, and a transcript of the latter judgment was filed and judgment docketed with the clerk of Queens county, an objection that the affidavit on which an order for examination in supplementary proceedings was granted does not show whether the transcript filed in Queens county was a transcript of the judgment docketed in New York county or rendered in the municipal court is untenable, since the judgment could not be duly docketed by the clerk of Queens county on a transcript other than of the judgment docketed in New York county. Appeal from municipal court of New York. Supplementary proceeding on the application of Oscar G. Stumpp and others to examine Fritz Starke, a judgment debtor. Objections of debtor overruled. A transcript of the judgment obtained by plaintiffs in the municipal court of New York City was filed with the clerk of New York county, and judgment docketed thereon. A transcript of the judgment thus docketed was later filed in Queens county, and judgment docketed there. Thereafter an execution issued by the clerk of Queens county out of the supreme court was returned unsatisfied, and an order was made for defendant's examination in supplementary proceedings. He moved to vacate the order, alleging that execution should have issued out of the county court of Queens county, and not out of the supreme court, and that the affidavit on which the order for examination was granted merely averred that a certified transcript was filed and judgment docketed thereon in Queens county, and did not show whether it was a transcript of the judgment docketed in New York county or rendered by the municipal court. James J. Conway, for judgment debtor. MOORE, J. When the constitution of 1894 became operative, a judgment docketed by the county clerk of New York county on a transcript of a judgment rendered by a district court in the city and county of New York was deemed a judgment of the court of common pleas for the city and county of New York, and an execution thereon issued out of that court. Consol. Act, § 1392, c. 410, Laws 1882; Code Civ. Proc. §§ 3017, 3220. In the other counties of the state a judgment docketed by the county clerk of a county on a transcript of a judgment rendered by a court held by a justice of the peace was deemed a judgment of the county court of the county in which the justice resided, and an execution thereon issued out of that court. Code Civ. Proc. § 3017. The state constitution of 1894 abolished, from and after the 31st day of December, 1894, the court of common pleas for the city and county of New York, and transferred all actions and proceedings then pending therein to the supreme court for hearing and determination. It vested the jurisdiction then exercised by that court in the supreme court. The reorganization of the courts of record of the state necessitated many amendments to the Codes, and the Code of Civil Procedure was generally amended in 1895 to meet the requirements of the constitution. Among other amendments made was that of section 3220 of the Code of Civil Procedure, so as to provide that a judgment docketed by the clerk of the county of New York on a transcript of a judgment of a district court of the city and county of New York should thereafter be deemed a judgment of the supreme court, and so that an execution thereon should issue out of the supreme court. Chapter 946, Laws 1895; Code Civ. Proc. § 3220. Prior to the 1st day of January, 1898, a judgment docketed by the clerk of the county of New York on a transcript of a judgment rendered by a district court in the city and county of New York was deemed a judgment of the supreme court, and a judgment docketed by the county clerk of the county of Queens on a transcript of a judgment rendered by a justice of the peace in his county was deemed a judgment of the county court of that county. Code Civ. Proc. 1897, §§ 3017, 3220. The Greater New York charter (chapter 378, Laws 1897) became operative on the 1st day of January, 1898. Section 1369 of that act provides that: * * "In so far as the same are consistent with this act, all provisions of law relating to procedure and organization * * judgments, transcripts, docketing, executions and all matters incidental to the same, the powers and duties of the justices and clerks and other employés in district courts in the city of New York, which shall be in force on the thirty-first day of December, eighteen hundred and ninety-seven, shall apply to and control and govern the same in said municipal court, and the branches thereof in each district." Article 2, tit. 4, c. 20, Code Civ. Proc., is entitled "Provisions exclusively applicable to the district courts of the city of New York," and was in force on the 31st day of December, 1897. This title contains provisions of law relating to judgments of district courts in the city of New York, transcripts of such judgments, docketing of judgments thereon, and the issuing of executions on such judgments. These provisions related exclusively to judgments rendered in the district courts of the city of New York. Section 3220 is found in this article, and, by its terms, draws sections 3017 to 3022, both inclusive, under this title, making these sections, as modified by the provisions of such |