286 A.D. 874 | N.Y. App. Div. | 1955
The second cause of action in the complaint is one for the partition of three parcels of real property. The answer, in addition to certain denials, alleges as an affirmative defense that the three parcels involved were owned by a decedent who died on July 23, 1952, that letters of administration were issued by the Surrogate’s Court, Kings County, on August 1, 1952, that the institution of the administration proceedings in the Surrogate’s Court conferred on that court complete jurisdiction over the estate of the decedent, that by reason of its first assuming jurisdiction, the Surrogate’s Court should retain such jurisdiction to the exclusion of the Supreme Court, and plaintiff is not entitled to maintain the action for partition in the Supreme Court. Plaintiff moved to strike out the answer with respect to the two causes of action in the complaint. The motion was granted. The appeal is from so much of the order which grants plaintiff’s motion to strike out the answer with respect to the second cause of action. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. The defense pleaded does not raise an issue. (McGirr v. Keesler, 273 App. Div. 778.) Wenzel, Acting P. J., MacCrate, Schmidt, Beldock and Ughetta, JJ., concur.
