Ris v. Ris

257 A.D. 845 | N.Y. App. Div. | 1939

In an action for an accounting, judgment dismissing the complaint upon the ground that it appears that the plaintiff has an adequate remedy in the Surrogate’s Court, reversed on the law and the facts and a new trial granted, with costs to the appellant to abide the event. Order of severance dated May 16, 1938, in so far as an appeal is taken therefrom, reversed on the law, without costs, and motion denied, without costs. While the Supreme Court has concurrent jurisdiction with the Surrogate’s Court of many matters affecting estates, ordinarily the Supreme Court will refuse to entertain jurisdiction if the Surrogate’s Court can afford adequate and complete relief. Under the circumstances existing here the court, of its own motion, should not have refused to dispose of the matter. Especially is this so when no question of jurisdiction was raised by either party and most if not all of the plaintiff’s case had been heard. It was error to grant the motion severing the action. There should be but a single action when all the rights of the parties can be determined in one suit. Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ., concur.