197 N.Y. 434 | NY | 1910
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The Appellate Division has exercised its discretion in refusing to entertain jurisdiction of the plaintiff's action, by refusing a new trial of the action and by dismissing his complaint, and it cannot well be said that grounds were lacking for its action. That it possessed this discretionary power is not to be doubted. When created, its jurisdiction was to be that which was exercised by the former "Supreme Court at its general terms" and it remains a part of the Supreme Court. (Code Civ. Proc. sec. 220.) Its powers of review comprehend the right to review an exercise of discretion by the inferior courts and, equally, the right to exercise its own discretion, independently, when the facts, or circumstances, of the case are such as to justify it. If, in the present case, the action had been between non-residents of this state, there could be no question as to the right of the court below to take the action it did. In such cases, the discretion has been exercised both in entertaining, and in refusing to entertain, jurisdiction; the exercise depending upon the special circumstances of the particular case. (See Collard v. Beach,
In the present case, the plaintiff, being a resident of the state, was entitled to bring an action, (Code Civ. Proc. sec. 1780), and, in the absence of fraud, or collusion, the jurisdiction of the Surrogate's Court to grant the letters of administration *438
could not be questioned collaterally. (O'Connor v. Huggins,
I advise, therefore, the affirmance of the judgment appealed from.
CULLEN, Ch. J., HAIGHT, WERNER, WILLARD BARTLETT and CHASE, JJ., concur; HISCOCK, J., dissents.
Judgment affirmed, with costs.