Stoerzer v. Nolan

46 N.Y.S. 587 | N.Y. App. Div. | 1897

Per Curiam :

The action was begun, as appears from the complaint, by a creditor of the company more than a year after the assignment. After the service of the summons and complaint the assignor defaulted in answering, but upon the admission by the assignee in his answer of the claim of the plaintiff, an application was made in due time by the plaintiff, on consent, for an interlocutory order and judgment directing an accounting, which application was denied, -and from the order entered thereon this appeal is taken.

The Supreme Court has ample jurisdiction to entertain an action for an accounting by an assignee for the benefit of creditors; and' it is also well settled that, by chapter 380 of the Laws of 1885, there was conferred upon the Supreme Court and its justices the same jurisdiction formerly held by County Courts and county judges under the General Assignment Act (Chap. 466, Laws of 1877). (Mills v. Husson, 140 N. Y. 99.) While, therefore, the court has jurisdiction to proceed either in Enaction or by petition and citation to compel an assignee to account, we do not think it follows that a creditor can compel the court to proceed in the action rather than by petition and citation. In other words, the creditor has no right to elect which ef the two remedies he should pursue, but it is a subject over which the. court has control and which it can regulate by rules and by requiring which of the two remedies shall be followed.

The right of the court thus to require the remedy to be pursued in one form rather than in another, is in many respects analogous to the same right exercised by the court in refusing to entertain actions for an accounting against executors, and remitting parties to their remedy for similar relief in the Surrogate’s Court. That the Supreme Court has the power to entertain actions for an accounting against executors is undoubted ; but its refusal to exercise such jurisdiction, unless special facts and' circumstances show that complete justice cannot be done in a Surrogate’s Court, is upheld by many cases. (Blake v. Barnes, 28 Abb. N. C. 401; Hard v. Ashley, 117 N. Y. 608; Chipman v. Montgomery, 63 id. 221.) Prior to 1885, it was the usual practice to have accountings by assignees brought in the County Courts, and this, notwithstanding the fact that the Supreme Court had jurisdiction to entertain an action for such an accounting, which it was always inclined to exercise when in a given casé no proceedings had been' commenced in the County Courts. Since 1885, as stated, this court having its original power to entertain such ah action, and also having conferred upon it the samé power as County Courts, it was; entirely competent to make such rules and regulations with respect to the remedy to be followed as would secure complete justice. To that end such rides have been, adopted ; and While there may be upon special facts and circumstances appearing — which, however, are not here present —- exceptional instances where it will entertain an action for an accounting, it.has formulated a procedure which, by petition and citation, follows the method formerly practiced in the County Courts, and, which experience has shown to be the most efficient.for securing notice to creditors and' for avoiding .the preferences and.. irregularities that may be suffered by the general creditors if • any particular one is permitted to have the control and direction of - an accounting in which all should have equal rights. . ;

While the- .appellant is' right, therefore, in Ms contention that .he • has two remedies, we think his error is in assuming that' the election is with him, ¡and that the court, is powerless to regulate which remedy he shall pursue; ■ and that, upon the facts here appearing, the trial judge was right in refusing to make the order and judgment applied for,. and in remitting the plaintiff to his remedy by petition, and citation, which is the procedure required by the rules.

The order, therefore, should be affirmed, but, as there appears to-be no respondent, it should be without costs. '

Present—Yaw Brunt, P. J., Williams, Patterson, O’Brien and Ingraham, JJ.

Order affirmed, without costs.