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of Shepard et al. v. Manhattan R. Co., 117 N. Y. 442, 23 N. E. 30, and Mullin v. Mullin, 119 App. Div. 521, 104 N. Y. Supp. 323, and kindred authorities, do not sustain the complaint.

As I view the case, there is no conceivable theory upon which these causes of action might properly be united in a single complaint. If it be assumed that the action is brought by the plaintiff as administrator primarily to determine the rights and interests of the estate of the decedent in the funds and securities in the hands of the plaintiff as pledgee and as administrator, and for an accounting with respect to the joint ventures or copartnership enterprises, the same difficulty is encountered, for neither the Trust Company, nor the defendants who assert an interest in the funds and securities in its hands individually and as administrator, have any interest in the settlement of the transactions between the decedent and Edmund K. Stallo as joint adventurers or copartners. Nor can the action be maintained on the theory that

brought by the plaintiff as administrator for a final accounting and distribution of the assets in its hands as such. The complaint contains no appropriate allegations to warrant the Supreme Court in taking jurisdiction and in ousting the Surrogate's Court of jurisdiction, for it is not alleged that all the debts and obligations of the estate have been paid, or that there is no one interested in the estate other than the defendants (see Hart v. Goadby, supra; Bushe v. Wright, 118 App. Div. 368, 103 N. Y. Supp. 403, affirmed 195 N. Y. 510, 88 N. E. 1116; Id., 118 App. Div. 320, 103 N. Y. Supp. 410, affirmed 195 N. Y. 509, 88 N. E. 1116), and while the Supreme Court has jurisdiction concurrently with that of the Surrogate's Court to require an accounting by executors or administrators, its jurisdiction is only exercised to the extent necessary to supplement the jurisdiction of the Surrogate's Court with respect to matters concerning which the latter Court is without jurisdiction (Chapman et al. v. Montgomery et al., 63 N. Y. 221; Borrowe v. Corbin, 31 App. Div. 172, 52 N. Y. Supp. 741, affirmed 165 N. Y. 634, 59 N. E. 1119).

But it is not even claimed that the action is one for a final accounting of the administrator. There is no precedent, and I see no propriety in establishing one, for a partial or intermediate accounting in the Supreme Court between the administrator and the next of kin, and therefore the action cannot be maintained for that purpose, and the joinder of these separate causes of action sustained on the theory that they are incidental to such an accounting. Although the Surrogate's Court has full jurisdiction to take or to require an accounting by the administrator, it has not jurisdiction of the causes of action set forth in the complaint with respect to the determination of conflicting claims to said funds and securities and to require the surviving partner or joint adventurer to account to the estate of the decedent. It is therefore both proper and necessary that those causes of action be litigated in a court of competent jurisdiction. They cannot, however, be deemed merely incidental to this action on the theory that it is one for either a final or a partial accounting by the administrator. The administrator is not ready to account with respect to the decedent's interest in the copartnership or joint adventurers, or with respect to the funds and

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securities held by plaintiff as pledgee or by it as administrator, and it is the duty of the administrator to collect the assets of the estate by enforcing its rights or having them determined, without joining the next of kin and creditors and calling upon or leaving it to them in their respective individual rights to endeavor indirectly to enforce or to protect the rights of the estate. If this action should be sustained on the theory that it is one for an accounting by the administrator, and that all other relief demanded is incidental thereto, and that it is properly brought in the Supreme Court owing to want of jurisdiction in the Surrogate's Court to decide the incidental matters, there would be no limit to the number of independent and wholly disconnected equitable causes of action that might be thus joined as incidental to an accounting by an executor or administrator in the Supreme Court, where it becomes necessary to resort thereto before there can be a final accounting; and the action might be brought at once upon the issuance of letters of administration and without first enforcing or endeavoring to enforce the equitable causes of action in favor of the estate, and by making the creditors and, as has been done here, the next of kin parties, shift or endeavor to shift the burden, which devolves upon the executors or administrators, of proving the causes of action onto the creditors and next of kin, at the risk of being concluded by an adverse decision in an action to which they are parties. If executors and administrators could thus avoid all the responsibility and risk of liability on the settlement of their accounts, such actions would become common, and a very large part of the work designed to be performed by the Surrogate's Courts would devolve on the Supreme Court, and the expenses and delays in the administration of estates would be largely increased. There is no precedent for such an action and none could be established.

MCLAUGHLIN, J., concurs.

METROPOLITAN TRUST CO. OF CITY OF NEW YORK v. STALLO et al.

(No. 6863.) (Supreme Court, Appellate Division, First Department. March 12, 1915.) 1. EXECUTORS AND ADMINISTRATORS Om 173, 474-ACCOUNTING AND SETTLEMENT-REMEDY.

An administrator, which at the time of appointment was a creditor of the estate holding collateral security, which had sold security for payment of its claim, and held a part of the proceeds of such sale, as well as certain securities to which claims were made by parties other than the estate or those ultimately entitled to it, might maintain an action for a general accounting to ascertain its chargeability to the estate in cash or securities, and what valid claims, if any, were held by any of the defendants against money or securities in its hands as apparent assets of the estate, in which every question as to the amount of the estate, the claims against it, and the administrator's liability for its act or failure to act as such, might be raised and determined.

[Ed. Note.-For other cases, see Esecutors and Administrators, Cent. Dig. 88 2041-2060; Dec. Dig. 473, 474.)

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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2. COURTS 480_STAY OF PROCEEDINGS IN ANOTHER COURT.

The Supreme Court, sitting as a court of equity, may, in a proper case, stay a proceeding in another court, and may restrain the prosecution of a proceeding as to which the Surrogate's Court has concurrent or exclusive jurisdiction; and the case for such restraint is strengthened where the commencement of the action in the Supreme Court antedates the commencement of the action or proceeding sought to be enjoined.

[Ed. Note.-For other cases, see Courts, Cent. Dig. 88 1270-1278; Dec.

Dig. Om 480.] 3. INJUNCTION W28-RELIEF-STAY OF PROCEEDINGS IN SURROGATE'S COURT.

Pending an action by an administrator for a general accounting to ascertain its chargeability to the estate, and the valid claims, if any, beld by any of the defendants against money or securities in its hands as apparent assets of the estate, a defendant therein instituted a proceeding in the Surrogate's Court for the plaintiff's removal as administrator, so as to afford an opportunity to charge it with loss suffered by the estate in consequence of its mismanagement or its wrongful acts in relation to the interests and assets of the estate. Held, that as the administrator was able to respond to any amount for which it was liable to account, and as such matters might be raised and determined in the action, and as other questions in which other defendants were interested could not be determined in the proceeding for removal, such proceeding would be enjoined pendente lite.

[Ed. Note-For other cases, see Injunction, Cent. Dig. $8 62–65; Dec.

Dig. Om 28.] 4. EXECUTORS AND ADMINISTRATORS 17-QUALIFICATION-SECURED CRED

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ITOR.

The fact that plaintiff was a secured creditor of an estate was not of itself a legal objection to its acting as administrator, there being no inconsistency in the two relations, and since a proper plaintiff might invoke the aid of a court of equity, making the interested parties defendants, in which the rights of all would be fully protected.

[Ed. Note.--For other cases, see Executors and Administrators, Cent.

Dig. $8 43-59; Dec. Dig. Om 17.] 5. EXECUTORS AND ADMINISTRATORS C35-REMOVAL-PURPOSE.

A proceeding to remove an administrator is not one to punish him, but to protect the estate.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. $8 227–262; Dec. Dig. Em35.]

Laughlin and McLaughlin, JJ., dissenting.

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Appeal from Special Term, New York County.

Action by the Metropolitan Trust Company of the City of New York, individually and as administrator of the estate of Alexander McDonald, deceased, against Laura McD. Stallo and others, impleaded, etc. From orders denying a motion for an injunction pendente lite plaintiff appeals. Orders reversed, motion to vacate temporary injunction denied, and motion for injunction pendente lite granted.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

John G. Milburn, of New York City (Walter F. Taylor, of New
York City, on the brief), for appellant.

Rockwood & Haldane, of New York City (Nash Rockwood, of New
York City, of counsel), for respondents.
Cum For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

and CUI 171

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SCOTT, J. [1] The nature of this action and the relief sought therein are stated at length in the opinion handed down herewith on appeal from an order sustaining a demurrer to the complaint. 152 N. Y. Supp. 173. For the purpose of this opinion it is sufficient to say that plaintiff is the administrator of the estate of Alexander McDonaiů, deceased, that it was at the time of its appointment a creditor of the estate, holding collateral security for its debt, that it has sold such security for the payment of its claim, and that it now holds a part of the proceeds of such sale, as well as certain securities with reference to which claims have been made by persons other than the estate or those ultimately entitled to it. The judgment sought is a general accounting, in which it may be ascertained with what plaintiff is chargeable, in cash or securities, as administrator, and what valid claims, if any, are held by any of the defendants against money or securities in plaintiff's hands which are apparently assets of the estate for which it is administrator. It seems to be quite plain that every question respecting the amount of the estate, the valid claims against it, and the liability of plaintiff for its acts or failure to act as administrator, can be raised and determined in this action, and it is not easy to see how they can all be determined otherwise than in this or some similar action, except by a series of actions, which latter course would inevitably result in much confusion and probably great expense to the estate.

Immediately after this action had been commenced, the defendant Laura McDonald Stallo, one of the two next of kin of the intestate, instituted a proceeding in the Surrogate's Court for the removal of plaintiff as administrator of the estate of said Alexander McDonald, deceased. An order was subsequently made by the Surrogate's Court granting the prayer of the petitioner. This order was reversed for reasons not affecting the question now under consideration. Matter of McDonald, 160 App. Div. 86, 145 N. Y. Supp. 267; Id., 211 N. Y. 272, 105 N. E. 407. By the orders entered on the appeal referred to the whole matter was remitted to the Surrogate's Court, which, as is conceded, has sole and exclusive authority, in the first instance, to act upon a petition for the removal of an administrator. The present application is for a temporary injunction restraining the defendant Laura McDonald Stallo from prosecuting, during the pendency of this action, the above mentioned proceeding instituted by her for the removal of this plaintiff as administrator as aforesaid, and from instituting or prosecuting any other action or proceeding concerning or affecting any of the matters set forth in the complaint herein.

[2] The authority of the Supreme Court, sitting as a court of equity, and indeed its duty, in a proper case, to stay proceedings in another court, is so well established that it will not be questioned. The only inquiry is as to when a proper case is presented. See Erie Railroad Co. v. Ramsey, 45 N. Y. 637; 4 N. Y. Annotated Digest, 948. Nor is it an insuperable objection to such an injunction that it restrains the prosecution of proceedings as to which the Surrogate's Court has concurrent or exclusive jurisdiction. Bettigrew v. Foshay, 12 Hun, 483; Van Sinderen v. Lawrence, 50 Hun, 272, 3 N. Y. Supp. 25; Schlesinger v. Schlesinger, 157 App. Div. 633, 142 N. Y. Supp. 729.

While the jurisdiction and authority of the Supreme Court to restrain the prosecution of proceedings in other tribunals are not necessarily determined by the priority of institution, the case for such restraint is much strengthened when, as in this case, the commencement of the action in the Supreme Court antedates the commencement of the action or proceeding sought to be enjoined. In Schuehle v. Reiman, 86 N. Y. 270, the Court of Appeals said:

"Where the object of two legal proceedings is the same, convenience, as well as a proper regard for the rights of a debtor and creditor, require, if possible, that the fund in which both are interested should be subjected to diminution by one litigation only, and the parties themselves spared the unnecessary labor and expense of conducting two controversies over the same matter. It would seem, also, that if both tribunals, whose interference has been invoked, have equal or concurrent jurisdiction, it should continue to be exercised by that one whose process was first issued.”

In Ludwig v. Bungart, 48 App. Div. 613, 63 N. Y. Supp. 91, the 'present Chief Judge of the Court of Appeals, writing for the Appellate Division, said:

"While it has many times been held that the Supreme Court may properly decline to take cognizance of a matter over which the Surrogate's Court has concurrent jurisdiction, such refusal does not seem to be authorized, unless the jurisdiction of the Surrogate's Court has already been invoked. The rule is that, where both tribunals have equal jurisdiction, the cause should be retained and disposed of in the forum where judicial action was first sought.”

To the same effect are Garlock v. Vandevort, 128 N. Y. 374, 28 N. E. 599; Matter of Farrell, 125 App. Div. 702, 110 N. Y. Supp. 41; Matter of Ayrault, 81 Hun, 107, 30 N. Y. Supp. 654, affirmed on opinion below 146 N. Y. 389, 42 N. E. 542; and many other cases.

[3] In considering whether the case at bar presents a proper occasion for the exercise of this undoubted jurisdiction of the Supreme Court, we may properly look at the grounds set forth in the petition as a reason for the removal of the administrator, not for the purpose of passing upon the sufficiency of those grounds, for that is a matter to be passed upon by the Surrogate's Court, but for the purpose of determining the imminence of the necessity, if necessity there be, for the consideration of the question whether or not the administrator should be removed.

It is to be noted in the first place that there is no suggestion anywhere that plaintiff is not amply able to respond to any judgment or order which may be made fixing the amount for which it is liable to account, and no claim is made that the assets of the estate are liable to loss or diminution by reason of the insolvency of plaintiff. By reference to the petition it appears that the sole ground upon which the removal of the administrator is sought is the claim on the part of the petitioner that plaintiff, occupying the dual position of administrator and secured creditor, failed to credit upon said loan certain sums which should have been credited thereon, sold the collateral securing such debt in violation of an alleged oral agreement to extend the due date of said debt, and improvidently or wrongfully sold said collateral se

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