259 A.D. 1014 | N.Y. App. Div. | 1940
Order denying the defendant’s motion to dismiss the complaint pursuant to subdivision 4 of rule 107 of the Rules of Civil Practice on the ground that there is another action pending between the same parties for the same cause, reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, without prejudice, however, to a new action in the event that the Surrogate’s Court finally determines that it is without jurisdiction of the subject-matter of the proceeding there pending. We are of opinion that the Surrogate’s Court, in the discovery proceeding instituted by the plaintiff and now pending in the Surrogate’s Court of New York County, has competent jurisdiction to afford the plaintiff adequate relief, legal and equitable, and finally to dispose of all the issues between the parties presented by the complaint, and that that proceeding is a bar to this action. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.
