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curities at a less price than should have been obtained for them. Thus it appears that every failure or dereliction of duty charged against plaintiff as administrator is something which has already been fully accomplished, and that the questions presented as arising therefrom are questions which can be appropriately raised and disposed of in this action, the principal object of which is to judicially and finally determine for what plaintiff is chargeable to the estate of which it is administrator. The gravamen of the petition is contained in its twentyeighth and twenty-ninth paragraphs, which follow the somewhat detailed statement of the several derelictions from duty charged against the administrator. These paragraphs read as follows:

"XXVIII. That said Metropolitan Trust Company admits a part of your petitioner's claim and denies the remainder, and that your petitioner and said Metropolitan Trust Company are unable to arrive at an agreement as to the amount of its liability and it is necessary to sue said Metropolitan Trust Company for an accounting, for which reason it is necessary that some person not interested adversely to your petitioner should be appointed administrator of the estate of said Alexander McDonald, who will bring suit forthwith against said Metropolitan Trust Company for an accounting and for damages.

“XXIX. That said Metropolitan Trust Company occupies a dual position of administrator and creditor of said estate, and is not in position to properly protect the rights and interests of your petitioner in said estate. Said trust company, in selling and disposing of said securities as herein stated, has failed to protect the interests of the estate of said deceased, and has recklessly and willfully caused loss and damage thereto, and has disregarded ifs duty as administrator, and has thereby derived large pecuniary advantage."

It thus appears that the purpose sought to be achieved by the removal of plaintiff as administrator is to afford an opportunity to charge plaintiff with the loss suffered by the estate in consequence of its mismanagement of the estate, or its wrongful acts in relation thereto. We are unable to see any reason why the appellant and her sister will not be in a perfect position to raise any such question as they may be advised in the present action. The natural result of superseding plaintiff as administrator would be to require it to account to the new administrator. Upon such an accounting these questions would at once present themselves and have to be passed upon. They can equally well be raised and passed upon in this action; but the other questions, in which other defendants are interested, could not be determined in an accounting proceeding in the Surrogate's Court. It cannot be questioned that the Supreme Court is a tribunal better equipped than the Surrogate's Court to determine such a claim as that which petitioner says she wishes to assert against plaintiff, and which is the real ground upon which she seeks plaintiff's removal. Yet it is quite possible, and even probable, that the action of the Surrogate upon the petitioner's application would operate as res adjudicata of that very serious question. Demarest_v. Darg, 32 N. Y. 281; Culross v. Gibbons, 130 N. Y. 447, 29 N. E. 839; Leavitt v. Wolcott, 95 N. Y. 212; Smith v. Zalinski, 94 N. Y. 519.

[4, 5] The mere fact that plaintiff was at one and the same time administrator of the estate and a creditor thereof is not alone a legal objection to its acting as administrator. It was a creditor when it was appointed, and very probably was selected as administrator for

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that very reason. At all events, there is no inconsistency in the two relations. Upon the whole, we see many reasons why the prosecution of the action for plaintiff's removal as administrator should be stayed until final judgment in this action, and we find no reason, in the interests of the estate, why it should not be.

In this action an opportunity is afforded, such as could not be afforded in any proceeding in the Surrogate's Court, to litigate every question that any person interested in the estate may desire to raise, and, so far as any allegation is made to the contrary, the continuance of plaintiff in office as administrator during the pendency of this action will not subject the estate to jeopardy of loss or depreciation. A proceeding to remove an administrator is not one to punish him, but to protect the estate. Matter of Monroe, 142 N. Y. 484 491, 37 N. E. 517. In that case the adrninistrator was also a secured creditor of the estate, and the charge against him was similar to that made against the plaintiff, to wit, that he had been guilty of wrongdoing, to the damage of the estate, in realizing upon the collateral securities. Referring to that charge the Court of Appeals said:

“The mere fact that the interest of the administrator individually was opposed to that of the estate in the matter now under consideration presented no embarrassment and did not require his removal from office. A proper plaintiff could have invoked the aid of a court of equity, making the interested parties defendants, and the rights of all would have been fully protected.”

This opinion is peculiarly apposite to the present appeal.

The orders appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.

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INGRAHAM, P. J., and CLARKE, J., concur.

LAUGHLIN, J. (dissenting). It is quite clear, and is conceded, that the respondent Laura McDonald Stallo instituted on sufficient charges properly presented (see Matter of McDonald, 160 App. Div. 86, 145 N. Y. Supp. 267, affirmed 211 N. Y. 272, 105 N. E. 407), a proceeding in the Surrogate's Court in which the appellant was appointed administrator of the estate of Alexander McDonald, deceased, for the removal of appellant as such administrator, and that the Surrogate's Court has sole and exclusive authority to determine such charges and to remove the administrators.

The administrator sought by an application for an injunction in this action to restrain said respondent from prosecuting the proceeding in the Surrogate's Court, pending this action, which would enable it to remain in charge of this action as administrator, and to so mold and present the same as to further its individual interest as a creditor of McDonald at the expense of his estate, for it brings the action the dual capacity for itself and as representing the estate, and in both capacities is asking the court to ratify and confirm its acts upon which the charges for its removal are predicated. When in Matter of McDonald, supra, this court and the Court of Appeals remitted the matter to the Surrogate's Court to proceed with the charges, it ap

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peared quite as fully as now that the alleged acts of misconduct and of hostility to the estate on the part of the administrator had been performed, and that the administrator was able financially to answer to those interested in the estate, and if that were a sufficient reason for not removing the administrator there would have been no occasion for ordering the charges heard.

Moreover, it now further appears that the administrator in bringing this action for the judicial approval of its alleged acts of misconduct is further proceeding in hostility to the interests of the estate, which constitutes further ground for its removal. See Lichtenberg v. Herdtfelder et al., 103 N. Y. 302, 8 N. E. 526; Matter of West, 40 Hun, 291, affirmed 111 N. Y. 687;' Matter of Gleason, 17 Misc. Rep. 510, 41 N. Y. Supp. 418. See, also, Pyle v. Pyle, 137 App. Div. 568, 122 N. Y. Supp. 256, affirmed 199 N. Y. 538, 92 N. E. 1099. In Matter of Moulton, 10 N. Y. Supp. 717,2 'the Surrogate's Court in the exercise of its discretion had refused to revoke the letters of administration, and the order was affirmed on the ground that the facts disclosed did not as matter of law require the removal of the administrator, and that the judicial discretion had not been improperly exercised. By appealing from the order denying the motion, the appellant is now asking this court, which has no jurisdiction to hear such charges or to remove an administrator, in effect to enjoin the Surrogate's Court from exercising its statutory functions in performing its statutory duties, notwithstanding the charges, which, if true, show that the administrator has violated its trust, and that its interests are diametrically opposed to those of the estate, and that it should be removed at once, in order to permit a disinterested representative to take charge of the interests of the estate involved in, or that may be affected by, the action. It is no answer to this contention to say that those interested in the estate are parties defendant herein, and may thus, in representing themselves, indirectly protect the estate, for the Surrogate's Court may

well deem that they are entitled to have the estate represented by a disinterested administrator, and to have the expenditures made by it in prosecuting or defending actions inure to the benefit of the estate, and not to its individual advantage and to the detriment of the estate.

If, in the circumstances of this case, it be within the jurisdiction of the Supreme Court thus indirectly to enjoin the proceeding in the Surrogate's Court, I think it would be an undue exercise of jurisdiction to do so, for the basis required to be shown by the provisions of section 604 of the Code of Civil Procedure for granting such relief does not exist here. The case here presented is one in which said respondent might well have asked for a stay of proceedings in this action until the determination of her application for the removal of the administrator. It is, of course, competent for a court of general jurisdiction to enjoin proceedings in a court of concurrent jurisdiction, where the issues are the same and may all be determined in the court

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2 Reported in full in the New York Supplement; reported as a memoran dum decision without opinion in 57 Hun, 589.

of general jurisdiction; but there is, I think, no precedent for issuing an injunction in an action pending in a court of general jurisdiction, in effect, enjoining proceedings in an action or proceeding in another court having exclusive jurisdiction of the subject matter sought to be restrained, and if it be within the jurisdiction of the Supreme Court to so extend the doctrine, I think it should not be done for no emergency requires it. See Paxton v. Patterson (Sup.) 10 N. Y. Supp. 303; Id., 12 N. Y. Supp. 563;1 Savage v. Allen, 54 N. Y. 458; Hamilton v. Cutting, 60 App. Div. 293, 70 N. Y. Supp. 118; Wallack v. Society, etc., 67 N. Y. 23; Norfolk & New Brunswick Hosiery Co. v. Arnold, 143 N. Y. 265, 38 N. E. 271; Edgell v. Clarke, 19 App. Div. 199, 45 N. Y. Supp. 979. It may be said that the appellant is not asking that the proceeding in the Surrogate's Court be enjoined, and that there is no attempt to prevent that court from exercising its statutory functions. But if the petitioner in that proceeding be enjoined from prosecuting it, that enjoins the proceeding as effectually as if the injunction ran against the court.

The learned counsel for the appellant contends that the issues arising on the charges against it in the Surrogate's Court are in part the 'same as those which will arise herein, and that if the proceeding for the removal of the administrator be not enjoined, findings may be made therein that will be binding herein. The learned counsel for the respondents claims that none of the issues will be the same, and that no finding in the proceeding for the removal of the administrator will be conclusive on any fact in this action. It is unnecessary to consider the merits of the respective contentions on that point, for I regard it as immaterial to the decision of the question now presented. There is no presumption that the Surrogate's Court, in so far as it is authorized to determine questions of fact, is not as competent to do so as any other court. If, however, the appellant prefers to be assured that none of the questions of fact in this action involved herein shall be determined in the Surrogate's Court, it has only to resign as administrator to accomplish that result; and if it shall so resign, I think its successor should be enjoined, pending this action, from requiring it to account, at least with respect to any matters at issue or involved herein, or during the pendency of any other action brought in a court of competent jurisdiction to determine therein, for manifestly the Surrogate's Court has not jurisdiction to decide such issues, and they must be decided before there can be a final accounting by the administrator.

I therefore vote for affirmance.

MCLAUGHLIN, J., concurs.

1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 58 Hun, 610,

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SIEGEL V, REECE BUTTONHOLE MACH. CO.
(Supreme Court, Appellate Term, First Department. March 18, 1915.)
FRAUDS, STATUTE OF Cw129_PERFORMANCE WITHIN YEAR-LEASE OF PER-
SONALTY-PART PERFORMANCE

Where a machine was delivered to the lessee under a 99-year oral lease and one month's rent thereon paid, but thereafter the lessee surrendered possession for the purpose of allowing repairs to be made, and the lessor refused to redeliver, there was not such part performance as would take the contract out of the statute of frauds and permit the lessee to recover damages for its breach.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. 88 287– 292, 303, 306–308, 310–312, 314, 318-320, 322, 323, 325, 326; Dec. Dig.

129.]
Appeal from City Court of New York, Special Term.

Action by Abe Siegel against the Reece Buttonhole Machine Company. Judgment for the defendant, and plaintiff appeals. Affirmed.

Argued March term, 1915, before LEHMAN, HENDRICK, and COHALAN, JJ.

Gerson C. Young, of New York City, for appellant.

Rogers, Kennedy & Campbell, of New York City (Nelson Zabriskie, of New York City, of counsel), for respondent.

COHALAN, J. Defendant, in the court below, moved for judgment on the pleadings. The complaint alleges that on the 29th day of April, 1914, the Siegel Vest Company and the defendant entered into an agreement wherein the Siegel Vest Company leased a buttonhole machine from the defendant for a period of 99 years, at a rental of $20 per month; that a delivery of the machine into the possession of the plaintiff's assignor was made; that the same was taken away for the purpose of repairing it by the defendant; that there was a failure to return the same; and thereupon damages are claimed for the loss of the use of the machine in the sum of $2,000. The defendant pleads the statute of frauds.

In pursuance of the agreement of hiring, the sum of $20 was paid to the defendant. It is unquestioned that the contract was not in writing. It was executed only to the extent that the machine had been installed in the plaintiff's place of business and one month's rent therefor had been paid. So far as it was executed, of course, the statute of frauds has no application; but so far as it was executory, the statute does apply. The plaintiff could not be deprived of any rights gained by the part performance of the contract, and rightfully held possession of the machine so long as the defendant permitted him to hold it. The oral lease, however, being void, did not permit the plaintiff to set up any affirmative right thereunder for the future; hence the defendant had a right to retake the machine at any time without being chargeable with liability as for a breach. The fact that the action is for a breach of contract conclusively shows that it was not executed. The complaint, therefore, as amplified by the bill of OmFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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