Gould v. Gould

203 A.D. 817 | N.Y. App. Div. | 1922

Smith, J.:

This order was made upon the ground that an accounting action is pending between George J. Gould and the estate, in which George J. Gould is claimed by the defendants to have overdrawn the amount due to him, and is largely indebted to said estate. If this fact be shown, these moneys may be impounded for payment of such excess that he has received. This order is interlocutory and simply restrains George J. Gould from prosecuting his claim until a determination of the action.

It is undoubtedly the ordinary rule that an injunction will not be granted in one action staying the proceedings in another action, unless the action in which it is made asks for an injunction. But the action in which this order is made is an administration action which will determine the account of George J. Gould, and, if any monéys are found to be owing to him, those moneys will be directed to be paid to him. If he should proceed in the Surrogate’s Court or in any other court to compel the trustees to pay him these moneys, the answer would be that he has been overpaid by the estate in amounts largely in excess of his annual income, which will involve an accounting, which is the object of the action in which this order was made.

A decision is herewith handed down (Gould v. Gould, 203 App. Div. 807) in which we hold that equity has power in an administration action to remove a trustee, although his removal be not asked for, either in the complaint, or in any answer. These strict rules of practice do not, we think, apply to an administration action, wherein a court of equity has power to make any order which will render effective any decree that it shall render as to the accounts between the parties to that action. Such a power exists as incidental to the right of the court to make an enforcible decree.

While it has not been determined in this action that George J. Gould is owing the estate any moneys whatever, the purposes of the action being to settle the accounts of the parties, and all parties being before the court, I am of the opinion that the court has power in this action to make this order, on the ground that, if George J. Gould has already received from the trust estate or from moneys which should have been applied to the trust estate more than sufficient to pay this income, this income is not owing to him by the estate, and that such fact cannot be ascertained until the conclusion of this action.

In my judgment, therefore, the order should be affirmed, with ten dollars costs and disbursements.

Clarke, P. J., Page, Greenbaum and Finch, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.