154 N.Y.S. 670 | N.Y. Sur. Ct. | 1915
The administrator presented a petition, prepared in conformity with section 2675 of the Code of Civil Procedure, alleging in substance that the respondents have the custody, possession or control of property of the intestate. Whereupon an order for the examination of the respondents was duly granted, proper service made, and the respondents appeared in court on the return day of the order, interposed an answer raising an issue of title and setting up claim of ownership. The property in question is a real estate mortgage, which was assigned during the lifetime of the intestate to the respondent Robert L. Speed, and thereafter by him assigned to the respondent Romelia A. Speed, both assignments being regular in form. The answer concludes with the allegation that the said Romelia A. Speed is now the owner and holder of said mortgage.
• The determination of the question herein involves the construction of sections 2675 and 2676 of the Code of Civil Procedure as amended and in effect on the 1st day of September, 1914. In this consideration we are but little aided by judicial decisions, inasmuch as there are but few reported cases where those sections have been considered since the revision.
The respondents claim the right to a jury trial by their answer, and insist that they ought not to submit to an examination inasmuch as it would be needless, and would enable the
The answer does allege possession, custody and title in one of the respondents, and sets forth the transaction, means and sources of title, with a full statement of the records thereof and place of recording.
The respondents; by their answer, have made unnecessary an examination, and the only remaining question before the court is the consideration of the trial of the issues raised by the petition and answers. This view seems to be in harmony with the Silverman Case (87 Misc. Rep. 571), and the Capria Case (89 id. 101), wherein Surrogate Fowler discusses the sections under consideration. We also have text-book authority in
The words of Judge Heaton, because of his wide experience, as well as his intimate knowledge of the work of the revision committee, are helpful in considering this question. So under the case presented, an examination ought not to be had, and is therefore denied.
The respondents demand settlement of issues and a' jury trial. If their demand is to be granted, it must be on the theory that the Surrogate’s Court has concurrent jurisdiction with the Supreme Court in this matter. It will be necessary for a proper determination of the questions involved to determine the effect and validity of the two assignments of mortgage involving equity jurisdiction and powers, which I believe the Constitution has not yet vested in the Surrogate’s Court. I am supported in this view by the opinions of surrogates of experience, who are now serving in the Constitutional Convention, who believe the jurisdiction of the Surrogate’s Court is limited in this respect, and have introduced in that convention a proposed amendment to the present Constitution, giving to Surrogate’s Courts jurisdiction to determine whatever question may arise in proceedings in that court. Such amendment would be unnecessary if the Surrogate’s Court now possessed that jurisdiction. I am convinced that it was not the intention of the legis
I believe the proceedings should be dismissed, but as the law is unsettled and the questions new it ought to be without costs to either party as against the other. The administrator, if he desires to pursue the matter further, may begin an action in the Supreme Court for the relief to which he believes he is entitled, without the embarrassment of jurisdictional questions therein arising. This dismissal is without prejudice to the bringing of an action in Supreme Court.
Decreed accordingly.