107 N.Y.S. 737 | N.Y. App. Div. | 1907
Plaintiff’s intestate was a beneficiary under the trust created by the will of James Brady, deceased. John B. De Cue was the sole surviving trustee and plaintiff brought this action in the Supreme Court for an accounting by him as such testamentary trustee. The other beneficiaries under the trust were joined as defendants and process was served upon them, and it is claimed that a summons and complaint was served upon De Cue shortly before his death. He having died leaving a will of which the defendant Ingraham is the executor, the plaintiff moved for an order making him a party defendant and reviving the action as against him.
Irrespective of the question as to whether De Cue was properly served or not, we think the order of revival was improperly made.
The complaint discloses no facts or circumstances showing that appropriate relief cannot be had in the Surrogate’s Court. The relief asked is simply a judicial, settlement of the accounts of a testamentary trustee and payment of the money found due. The Surrogate’s Court is the proper tribunal for such an accounting, and such an action will not be entertained by the Supreme Court unless facts are pleaded showing that the case is one requiring relief of such a nature that the Surrogate’s Court is not competent to grant it, or that for some reason complete justice cannot be done in that court. (Matter of Smith, 120 App. Div. 199 ; Citizens' Central Nat. Bank v. Toplitz, 113 id. 73; affd., 188 N. Y. 634; Borrowe v. Corbin, 31 App. Div. 172 ; affd., 165 N. Y. 634, on opinion below.)
In Borrowe v. Corbin (supra) the'complaint was dismissed upon the action coming on for trial, and the determination was affirmed on the ground that the Supreme Court would not entertain jurisdiction because complete relief could 'be granted in the Surrogate’s Court. A testamentary trustee obtains his authority to act throu’gh probate of the will and qualification in Surrogate’s Court and with respect to control over his acts and adjustment of his accounts he stands in the same position in that court as an executor or administrator. Such being the rule, the court below should have refused to revive the action as against the defendant executor.
The fact that the substituted defendant is an executor of a deceased testamentary trustee does not change the situation. By section 2606 of the Code of Civil Procedure the Surrogate’s Court is
The order should be reversed, with ten dollars costs and disbursements, .and the motion denied, with ten dollars costs.
Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and. motion denied, with ten dollars costs.
