16 Misc. 2d 224 | N.Y. Sup. Ct. | 1956
This is a motion "by defendants, Kerrigan and Clarence J. Shearn, Jr., for an order pursuant to section 190-a of the Civil Practice Act removing this action to the Surrogate’s Court of "Westchester County for trial. The action was brought by plaintiff under article 15 of the Real Property Law to determine her claim to the sole ownership of a certain piece of real property located in Manhattan at 13 East 69th Street. The record owner of the property in question is Clarence J. Shearn, plaintiff’s husband, now deceased, and whose estate is being administered in Westchester County, of which decedent was a resident at his death.
The action was instituted against all defendants other than plaintiff (who is also specified as a defendant) on or about December 19, 1955. Plaintiff also claims that she served a summons in this action on herself, in her representative capacity, on September 2, 1955, thus antedating in point of time the institution of the accounting proceeding by her coexecutor. The answers of the various defendants (except the plaintiff, in her representative capacity, who has not appeared or answered as such) put at issue plaintiff’s claim of title to the property and set up various defenses including laches, waiver and estoppel by reason of her various acts and her capacity as an executor.
On or about June 15, 1956, based upon an application by defendants herein, Kerrigan and Clarence J. Shearn, Jr., the Surrogate of Westchester County, entered an order as required by section 190-a of the Civil Practice Act, consenting to the transfer of the within action to his court for trial. The basis for his order is set forth in his opinion (16 Mise 2d 238), which states at length the facts and the law upon which he relies for his determination that the action is properly transferable to the Surrogate’s Court.
The plaintiff contends in opposition: that since the sole issue involved is that of title to real property, it must be tried in the county where such property is situate (Civ. Prac. Act, § 183) and that this therefore is not the kind of action intended to be transferred within the scope of section 190-a. It is also urged that the case will be tried just as promptly here as in the Surrogate’s Court.
There is no question that the primary issue present in this action is that of the actual ownership of premises 13 Bast 69th Street, Manhattan. The dispute clearly is between plaintiff and the estate of decedent. In my opinion the determination of that question is inextricably interwoven with the administration of the estate in that no final disposition can be made with regard to the account attempted to be settled by the defendant, Lord, until it is decided whether the estate is the - owner of the property or not. Obviously, until it is known whether the property belongs to the estate, the Surrogate’s Court is in no position to make a decree with respect to its disposition since the moving parties assert that as part of the residuary it will have to be sold to pay debts and administration expenses. This matter clearly constitutes a matter relating to the affairs of a decedent as referred to in section 40 of the Surrogate’s Court Act. In such a case the Court of Appeals has held that the “ broadest jurisdiction ” is conferred upon the Surrogate (Matter of Lyon, 266 N. Y. 219, 223). That jurisdiction has been construed to include the right to determine ownership of real property even where located in another county where such a determination is necessary before other required decisions may be made. (Matter of Poth, 155 Misc. 116, 120, 121, affd. 246 App. Div. 522.) It has also been held that the Surrogate’s Court “ has jurisdiction in an accounting proceeding to determine the title to real property standing in the name of the decedent.” (Matter of Arrington, 200 Mise. 72, 74 and cases cited therein.) It is obvious that the question of the ownership
Settle order.