112 N.Y.S. 441 | N.Y. App. Div. | 1908
The learned justice at Special Term has granted the plaintiff’s motion to stay the proceeding in Surrogate’s Court on the ground that the issues presented in that proceeding could all he disposed of in the trial 'of this action, and as this action was first brought, such issue should be there tried and determined. We cannot agree with this conclusion. The main issue presented in the proceeding in Surrogate’s Court is as to the deficiency of personal assets to pay the decedent’s 'debts. This issue is wholly irrelevant to the partition action, inasmuch as the proceeds of the sale must be deposited with the treasurer of the county to await the issue of the proceeding in Surrogate’s Court. (Code Civ. Proc. § 1538.) The fact that the defendant has alleged the insufficiency of personal assets, and that has been denied by the plaintiff in her reply, does not make relevant an otherwise irrelevant issue. Mor is there any issue in that proceeding as to whether decedent died seized of the real estate, claimed by the defendant Benjamin. The requirement of the Code of Civil Procedure (§§ 2749, 2752) that the petition in that proceeding must describe all of the property owned by decedent at his death is mainly for the purpose of enabling the surrogate to determine what parcels shall be first sold. It may be that a creditor could raise the issue that decedent owned other real property at his death, if the property sought to be sold were insufficient to pay the debts. But such an issue could not be raised by an heir who has no legal interest that the debts of the intestate be paid, or no right to have such other property'first sold. Mo decree, therefore, in that proceeding could bind plaintiff in this action as to the ownership of the real property in dispute.
Defendant Benjamin shows more reason in her application for a stay in this action. Her position is that this partition action will be contested and a large bill of costs incurred, which, if defendant succeeds, will be charged upon the two small pieces of real estate that were concededly owned by decedent, at his death; that such costs will consume the value of this real estate, and that nothing will be left to the creditors, who are entitled to this real estate for the payment of their debts before the litigants for the payment of their costs. This contention seems to us reasonable and just. If the plaintiff would contest with the defendant Benjamin the title to
All concurred, except Kellogg, ' J., dissenting on ground that this action should be stayed.
Order modified as stated in. opinion, and as so modified affirmed, with ten dollars costs and disbursements to the appellant as against the- plaintiff.
