Seymour v. Seymour, 4 Johns. Ch. 409

Seymour v. Seymour

4 Johns. Ch. 409 | New York Court of Chancery | 1820

The Chancellor.

The object of this bill, is not simply discovery, but relief. It seeks to transfer to this Court the jurisdiction of the whole matter of account between the administrators and the next of kin ; and that too after the cognisance of the case has duly attached before the surrogate. It is not to be disputed, that the surrogate is clothed with powers competent to settle the accounts of the estate. *411and to decree and enforce distribution; and there is no reason assigned why his jurisdiction should be superseded, and the entire cognisance of the case transferred to this Court. The act relative to the Court of Probates, &c. (1 N. R. L. 448. s. 11, 12, 13.) declares, “ that it shall be lawful for the surrogate granting administration, to call such administrators to account, &ic. and upon hearing, and due consideration, to order distribution, Sic., and the same distribution to decree and settle, and to compel such administrators to observe and pay the same, and to enforce such decree by imprisonment, Sic., and to compel witnesses to attend and be sworn,” Sic. The surrogate has so far a concurrent jurisdiction with this Court; and without some special reason set forth in the bill, I am not inclined to interfere with the ordinary exercise of such a power j because, I do not, at present, perceive, that such an interference would be warranted. There is nothing, in this case, that would not apply to every case; and it. would be assuming exclusive jurisdiction over the subject matter.

But if this be considered as a mere bill of discovery, in aid of the cause before the surrogate, it is essentially defective. There is not sufficient ground laid, for staying a trial at law, or a proceeding in another Court. The bill ought to have charged, that certain facts were within the knowledge of the defendants, and that a disclosure from them was requisite. The bill or affidavit to support the injunction, must state the belief of the plaintiff, that the answer would furnish discovery material to the defence, and that the plaintiff had not the means of obtaining the facts without such discovery. This was the doctrine of the case of Gelston v. Hoyt, (1 Johns. Ch. Rep. 543.) and it is supported by other decisions. (Appleyard v. Seton, 16 Ves. 223. Duvals v. Ross, 2 Munf. 290.) A general demurrer will lie to a bill, that seeks immaterial discovery; (8 Bro. P. C. 161.) and it is not material, unless it really be want*412ed for the defence at law. In this case, the plaintiff is only apprehensive that he should not be able to make full proof of the material facts. This is too feeble an averment, a suggestion of too doubtful an import, and of too diffident a pretension, to justify an injunction staying a proceeding before a competent tribunal. Probably, if the question on the materiality of the discovery sought, had arisen upon a demurrer to the bill, and an injunction staying the suit at law in the mean time had not been asked for, the materiality of the discovery might not have been very nicely examined. Lord Thurlow said, in such a case, upon demurrer, [Bishop of London v. Fytche, 1 Bro. C. C. 69.) that “ whether it was material or not, was chiefly for the plaintiff to judge, for he must pay the costs of the application. It would remain with another Court to say how far it was material.”

Motion denied.