63 N.Y.S. 939 | N.Y. App. Div. | 1900
The action was commenced to settle the accounts of the executors and trustees under the last will and testament of Alfred G. Myers, deceased, and to have charged against and allowed, out of the income of the trust estate to which the said Louisa Myers became entitled, a certain overpayment made to her, or her committee, she having been declared a lunatic. The complaint then asks that, pending the determination of this action, the proceeding .for an accounting now pending in the Surrogate’s Court by John A. Rutherfurd, as executor and trustee under the last will and testament of Alfred G. Myers, deceased, be stayed. This complaint having been served, the plaintiff made a motion “ for a stay of the accounting as to the estate of Alfred G. Myers, now pending in the Surrogate’s Court of the County of Mew York.” That motion was denied, and from the order denying that motion this appeal is taken.
We do not think that the Supreme Court had authority to stay the proceedings on an accounting in the Surrogate’s Court. While this court has jurisdiction upon proper facts to enjoin the parties to an action or special proceedings in other courts from proceeding therewith, if a stay of proceedings is required, application must be made in the court in which the proceeding is pending. Mo injunction in this case was applied for. It does not appear that the pro
We do not see, however, why the surrogate cannot properly settle the accounts of the trustees in the accounting proceeding before him. The question is whether one of the beneficiaries has been paid all the interest or income from the property held in trust to which lie was entitled. The plaintiff alleges that in consequence of a mistake as to the interpretation of the will under which he has acted, this beneficiary was paid an amount in excess of that to which he was entitled. He lias claimed and exercised the right to deduct from the income accruing subsequent to the discovery of the mistake an amount sufficient to make good the overpayment; and whether or not the trustee had a right to deduct such subsequent accruing* income is the question which he seeks to settle in this action. But it would seem that that was simply a question of accounting which the Surrogate’s Court had ample jurisdiction to properly determine. This does not seem to depend upon any equitable doctrine of set-off, or other equitable principles which can be administered only in a court of equity, but would seem to be a question of account over
We think the order appealed from should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.