30 A.D.2d 241 | N.Y. App. Div. | 1968
We have before us three appeals, two from orders of Supreme Court, Onondaga County, and one from an order of the Surrogate’s Court of Onondaga County. All of the
By order to show cause, defendant, the Paul Gr. Badgley Company, Inc. (Badgley Company), moved for an order “ directing and requiring that all of the above-entitled actions be tried together in the Supreme Court, Onondaga County, without consolidation, pursuant to CPLR Article 6, on the ground that a common question of law and fact is involved ”. Plaintiff Barch, executrix of the estate of Barch, defaulted on this joint trial motion, which was made in Special Term of Onondaga County and resulted in an order, dated July 7, 1967, which directed " that the four above-entitled, actions be tried together in the Supreme Court, County of Onondaga, without consolidation”. The order further directed “ that the venue of Action #1 [Barch action] be and the sáme hereby is changed from New York County to Onondaga County ”. Plaintiff Barch appealed from only that part of the order which changed the venue from New York County to Onondaga County and directed the Clerk of New York County Supreme Court to forward the papers to the Clerk of Onondaga County.
Plaintiff Barch then moved before the Special Term Justice, who had made the order, to set aside the plaintiff’s default and requested that the court modify its order by eliminating from it the transfer of venue from New York County to Onondaga County. By order dated September 21, 1967 Special Term opened plaintiff Barch’s default, heard argument on the merits and denied that portion of the motion which sought a modification by elimination of the venue change. Inasmuch as this second order was in every sense a reargument of the first order, the second order superseded the first and made it moot and academic (Sternberg v. Zaretsky, 20 A D 2d 795; J. J. Carroll, Inc. v. Waldbauer, 18 A D 2d 914).
There is a fundamental and fatal defect in both of Special Term’s orders by reason of the failure of the moving parties to have made the motion in New York County. CPLR 2212 (subd. [a]) requires that the motion “ shall be noticed to be heard in the judicial district where the action is triable or in a
The respondents’ order to show cause which sought joint trial made no reference to or request for a change of venue. The granting of such relief in the first order of Special Term exceeded the specific relief requested and was reaffirmed in the second order by the denial of the motion to modify. Even if the order to show cause had requested a change of venue, the noticing of the motion in Onondaga County rather than in the First Judicial District would have made the granting of the motion invalid (CPLR 2212, subd. [a]). Without reaching or passing on Special Term’s right to order a change of venue by reason of its order of joint trial, we find that this order was fatally defective in this respect for there were no grounds asserted in any of the supporting affidavits to justify a change of venue even if it had been permissible for such relief to have been granted. The moving parties produced no reasons why they should have a change of venue. Not only did the moving parties fail to apprise plaintiff Barch in their notice of motion of the desire to change venue but, furthermore, all elements necessary to a motion for change of'venue were absent (Strosberg v. Kiamesha Concord, 26 A D 2d 723; Nearing v. Gersch, 26 A D 2d 989; Stein v. American Federation of Photo Employees, 3 AD 2d 625; Condon v. Schwenk, 10 AD 2d822; 7 Carmody-Wait 2d, New York Practice, Place of Trial or Venue, § 48:40).
Perhaps the most crucial appeal before us is that which seeks a reversal of the Surrogate’s order. Letters testamentary were issued to Donna M. Barch on November 17, 1965; she proceeded, as executrix, to administer the estate, of which she was the sole devisee and legatee, distributed all the property, paid the estate taxes and completed all of her duties by June 23, 1967. All which remained to be done after that date was the prosecution of the wrongful death action. On June 23, 1967 the Surrogate granted plaintiff Barch’s ex parte petition to resign and granted her request to appoint one Edward M. O’Brien as administrator, c. t. a., with letters limited to the prosecution of the wrongful death action. Her petition recited
On July 12, 1967 the Surrogate signed an order, upon the application of the attorneys for defendant Badgley Company, requiring plaintiff Barch, Edward M. O’Brien, administrator, c. t. a., and their attorneys to show cause ‘ ‘ why an order should not be made and entered vacating and setting aside the decree of this Court dated June 23, 1967 permitting said Donna M. Barch to resign as Executrix and substituting in her place and stead Edward M. O’Brien as Administrator, eta, upon the ground that the petition of Donna M. Barch dated June 23, 1967, and the affidavit of Charles F. Krause, dated June 22, 1967, presented to this Court incomplete and inaccurate facts and failed to present to this Court the true facts concerning the reason for requesting the substitution of the representative of the Estate of Chester J. Barch, deceased ”.
Affidavits in support of the order to show cause were made by attorneys for defendant Badgley Company, the estates of Badgley, Ditch and Schweitzer and defendants Avco and Bendix. All of the supporting affidavits alleged, in substance, that plaintiff Barch in her petition, which resulted in the Surrogate’s approval of her resignation and appointment of O’Brien as administrator, c. t. a., failed to disclose that plaintiff Barch had instituted a wrongful death action in the Supreme Court of New York County; that she had not brought to the Surrogate’s attention the outstanding order to show cause which resulted in the Special Term orders of joint trial and change of venue; “ and failed .to disclose that the interests of the three other estates being administered by this Court would be affected by the proposed substitution”. The moving parties urged that these “inaccuracies” and failure to make “full disclosure”
The Surrogate vacated and revoked his order of June 23, 1967, declared it to be void ab initio and reinstated the letters testamentary previously issued to plaintiff Barch. In his opinion the Surrogate stated that he ‘ ‘ would not have entertained the application if there had been full disclosure ”. He further held that the existence of the Barch Supreme Court New York County action and the outstanding order to show cause for joint trial ‘ ‘ were material facts bearing on the exercise of our discretion” and should have been disclosed. He also implied that suppression of these facts “is equivalent to the false suggestion of material fact ”.
The Surrogate cited as authority for his decision subdivision 6 of section 20 of .the Surrogate’s Court Act. In our consideration of this appeal we are proceeding under section 309 of the Surrogate’s Court Act which in part provides: “Upon an appeal from a determination of the surrogate, made upon an application pursuant to subdivision six of section twenty, the appellate court has the same power as the surrogate, and his determination must be reviewed as if an original application were made to that court. ” (See Matter of Tuttle, 4 N Y 2d 159, 166-167.)
Although not decisive of the issue, it is noteworthy that the only authority cited for holding ‘ ‘ the suppression of facts is equivalent to the false suggestion of a material fact ’ ’ is Bolling v. Coughlin (5 Redf. 116 [Surrogate’s Ct., 1881]). That question was left open by the Surrogate in Bolling, because there the respondent, seeking letters of guardianship, failed to disclose that custody of the infant had been awarded to petitioner in a Supreme Court habeas corpus proceeding, and the Surrogate deemed this sufficient to require a trial of the custody issue (p. 120).
Assuming there was incomplete disclosure, the next inquiry must be whether it was nondisclosure of “material facts bearing on the exercise of—discretion—”. (Cf. SCPA 711,
The Surrogate’s principal consideration, at the time the resignation petition was submitted, should have been the best interests of the Barch estate. In our view a refusal to permit the resignation would have been prejudicial to these best interests. It would appear to us that the discretion of the Surrogate would virtually dictate permitting the resignation, for the sole purpose, as communicated to him, was concededly the desire to secure a larger recovery in the Federal court. (Cf. 2 Warren’s Heaton, Surrogates’ Courts, § 136; 2 Jessup-Eedfield, Surrogates’ Law and Practice, § 1658.) Even if we assume the failure to disclose the matters asserted by the respondents, these were not material facts and certainly not of the quality to justify the statement that suppression of these facts “ is equivalent to the false suggestion of a material fact”.
Bastow, P. J., Del Vecchio, Witmer and Henry, JJ., concur.
Appeal, in the four above-entitled actions, from order dated July 7, 1967 unanimously dismissed, without costs as academic. Order dated September 21, 1967, insofar as it denies plaintiff’s motion to modify by striking therefrom the change of venue, reversed, without costs and motion granted.
Order, in the above-entitled proceeding, entered August 3, 1967 unanimously reversed, without costs, and order dated June 23, 1967 reinstated with full force and effect as of the date thereof.