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