| N.Y. App. Div. | Jun 21, 1907
The executor under the last will and testament of Phoebe' Dé Saxe applied to and obtained from the Special Term'of this court an order directing all ¡versons interested in the. estate, either as legatees, creditors or otherwise, to appear before one of the justices of this court sitting iú Special Term, at a time and -place stated, to attend a final judicial settlement of his accounts as executor.
There is no doubt, that the equitable branch of the Supreme . Court possesses jurisdiction concurrent with’ the Surrogate’s Court to entertain an action for an accounting by an executor. (Haddow v. Lundy, 59 N.Y. 320" court="NY" date_filed="1874-12-22" href="https://app.midpage.ai/document/haddow-v--lundy-3630920?utm_source=webapp" opinion_id="3630920">59 N. Y. 320.) The statute, however, gives full power to Surrogates’ Courts to settle the accounts of executors and administrators and distribute the estate among the persons entitled to receive the sanie, and that is the appropriate tribunal for the settlement of such .accounts'.- (Chipman v. Montgomery, 63 N.Y. 221" court="NY" date_filed="1875-11-23" href="https://app.midpage.ai/document/chipman-v--montgomery-3619696?utm_source=webapp" opinion_id="3619696">63 N. Y. 221.) The’ rulé seems to be well settled "that where- complete relief can1 be , obtained in the Surrogate’s Court, the Supreme Court will refuse to exercise its equitable powers to- entertain, an action for an accounting • (Wager v. Wager, 89 N.Y. 161" court="NY" date_filed="1882-05-30" href="https://app.midpage.ai/document/wager-v--wager-3632975?utm_source=webapp" opinion_id="3632975">89 N. Y. 161; Anderson v. Anderson, 112 id. 104); in other words, it'-will decline- to take jurisdiction of ’ an action for an accounting by the representatives of -the estate of a deceased person unless special facts and circumstances are alleged showing that the case is one requiring relief of such a nature that the Surrogate’s Court is not competent' to- grant it, or some reason assigned or" facts stated" to show that complete justice cannot be", done in "that court. (Sanders v. Soutter, 126 N.Y. 193" court="NY" date_filed="1891-04-14" href="https://app.midpage.ai/document/sanders-v--soutter-3592062?utm_source=webapp" opinion_id="3592062">126 N. Y. 193; Citizens' Central National Bank v. Toplitz, 113 A.D. 73" court="N.Y. App. Div." date_filed="1906-05-11" href="https://app.midpage.ai/document/citizens-central-national-bank-v-toplitz-5199116?utm_source=webapp" opinion_id="5199116">113 App. Div. 73.) And when it does take jurisdiction it will only -be in an action in which- the special -facts and- circumstances are set forth in the complaint. Here, the application was by petition and tliore were no special facts. and circumstances alleged; on the contrary, the only facts stated by reason of which a settlement - is sought in the Supreme Court is that the petitioner is advised- by li.is attorney that if he accounts in the Surrogate’s Court “ that owing to the stringent rules of evidence which are made applicable to the said court- by section 2729 of "the Code of Civil Procedure, governing the admission of evidence as to payments by executors, where ho vouchers can be produced, he would be unable to testify as to such, a payment or to’ introduce all his evidence tending to prove the said payment as alleged in -the said schedule and thereby working great injustice and hardship upon your petitioner.” Obviously, this -is not a reason why the court .should, take jurisdiction, and if it -did, the' executor would
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Ingraham, Laughlin, Clarke and Scott, JJ., concurred.-
Order affirmed, with ten dollars costs and disbursements.