Cass v. Cass

Hardin, P. J.

Appellant, in his argument before us, urges certain objections to the order to show cause, which is in the nature of a notice of motion, and asks us to reverse the order on alleged technicalities and irregularities in the nature of preliminary objections; but, upon turning to the order, we are unable to discover that such objections were taken at the special term. It is too late for the appellant to raise them on this appeal in the first instance.

2. The appellant insists that the complaint does not state facts sufficient to constitute a cause of action, and insists that it must appear on the face of the complaint that the party coming into a court of equity lias not an adequate remedy at law.

(а) In answer to such position taken by the appellant, it may be observed that section 3339 of the Code of Civil Procedure provides as follows: “There is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished.”

(б) It has lately been held by the court of appeals that “the defendant in an equity action, in order to insist that an adequate remedy exists at law, must set it up in his answer.” Ostrander v. Weber, 114 N. Y. 96 , 21 N. E. Rep. 112. The judge at special term correctly observed that no defense of that character is pleaded.

3. It is insisted in behalf of the appellant “that the surrogate’s court has complete and adequate power to administer the machinery necessary to force an accounting of the trustee, and to settle the same without invoking the aid of a court of equity;” and the learned counsel for the appéllant refers to section 2802 et seq. of the Code of Civil Procedure. It may be conceded that the proper surrogate would have jurisdiction ol' the trusteed and that proceedings might be initiated in the surrogate’s court to compel him to account and perform his duties as trustee, and that such proceedings might be instituted at the instance of any one interested in the fund in the hands of the trustee; but we do not Understand that those sections of the Code, or any other legislation, has deprived the supreme court of its jurisdiction over trustees and trust funds. In Wager v. Wager, 89 N. Y. 168 , it was said: “Where complete relief can be obtained in the surrogate's court, a court of equity may, in its discretion, decline on that ground to entertain an action for an accounting or other relief against executors; hut the proposition that the court has no jurisdiction in such a case cannot be sustained.” When this action was commenced, no proceedings before the surrogate were pending, instituted by *232 the plaintiff or by the defendant, for an accounting or a judicial settlement of the accounts of the trustee. In Rogers v. King, 8 Paige, 210 , it was held that the jurisdiction of this court and of the surrogate over an executor or administrator to call him to account were concurrent; and it was further held in that case that, where a bill was filed in chancery against an executor or administrator for an accounting, in a subsequent proceeding brought before the surrogate, the pendency of the suit in chancery might be set up before the surrogate in the nature of a plea in abatement, and will constitute a valid objection to the proceedings therein. The doctrine of that case was referred to and followed in Groshon v. Lyon, 16 Barb. 467 ; and, after stating the rule as laid down in Rogers v. King, supra, the court observed: “The converse of the rule thus laid down would also hold. If there were a decree before the surrogate to account, it would be a bar to any proceeding for an account in the court of chancery, in all' cases where full relief could be had befoie the surrogate.” In Wood v. Brown, 34 N. Y. 337 , the jurisdiction of this court over trustees and executors was a subject of inquiry; and, after referring to the statute conferring jurisdiction upon surrogates, it was observed by Judge Morgan, who delivered the opinion of the court, as follows: “It does not, however, follow that a court of equity may not exercise the same or concurrent jurisdiction;” and later on in the opinion he further adds: “But, then, it must be conceded that courts of equity, as a general rule, have ■a concurrent jurisdiction with surrogates’ courts in matters of accounting, as against executors and administrators. Rogers v. King, 8 Paige, 210 . These courts may furnish a more comprehensive remedy, for they may proceed by injunction to restrain the further proceedings of executors until an account'can be taken, if there is danger of injury to the estate. The case at bar was a proper one to call on the defendant to render an account of his proceedings.” In Christy v. Libby, 5 Abb. Pr. (N. S.) 192, an action was brought to compel the defendant to account to the plaintiff for the assets he had received, and in the course of the opinion it was said: “The provisions of the Revised Statutes conferring the jurisdiction upon surrogates was to provide an inexpensive and summary mode of bringing executors, etc., to account, but did not take away the power theretofore exercised by courts of equity to afford this species of relief. It still exercises a concurrent, and in some cases an exclusive, jurisdiction. Rogers v. King, 8 Paige, 210 ; Will. Eq. Jur. 560.” In Christy v. Libby, 35 How. Pr. 119 , it was held, viz.: “Courts of equity have jurisdiction to call upon executors and administrators to account. Such power was frequently exercised by the late court of chancery, although the surrogate had jurisdiction over such proceedings. The Revised Statutes do not confer on the surrogate exclusive jurisdiction over proceedings to compel executors, administrators, or collectors to account.” In the course of the opinion in that case, Van Vobst, J., said: “Courts of equity take cognizance of the conduct of executors, administrators, and other trustees. 3 Bl. Comm. 437; Will. Eq. Jur. pp. 88, 490.” In Haddow v. Haddow, 3 Thomp. & C. 777, it was held: “A court of equity has jurisdiction to compel an accounting to parties entitled to an estate from those who have it under their control, when the proper parties are in court.” This case was alfirmed in the court of appeals, ( 59 N. Y. 320 .) and, in delivering the opinion the court (Rafallo, J.) says nothing inconsistent to the doctrine of the cases to which we have already referred. Appellant’s counsel calls out attention to Seymour v. Seymour, 4 Johns. Ch. 409 . We have examined it, and find nothing inconsistent with the doctrine of the cases already referred to. In that case it was held that “a surrogate has concurrent jurisdiction with the court to compel administrators to account and make distribution of the estate;” and it was further held that, after administrators had been brought before the surrogate “for an account and distribution of the intes. tate’s personal estate, this court will not, without some special and satisfac *233 tory reason, interfere with the proceedings of the surrogate by granting an injunction and sustaining a bill for general relief.” We think the case does not aid the argument of the appellant.

4. The appellant contends that the reference ought not to have been ordered, because the trial of the issue involved difficult questions of law. The affidavit on that subject is a general averment, and does not conform to the requirements of the adjudged cases. In Salisbury v. Scott, 6 Johns. 329 , it was said: “Where a motion to refer a cause is repelled on the ground that questions of law will arise on the examination of the cause, the party must state what the points of law are, so that the court may judge whether they are material or difficult, and will necessarily arise, and that we may be satisfied whether the referees be a proper tribunal for the trial of the cause; otherwise, by the general affidavit, all references may be prevented.” This case was referred to with approval by Judge Paige in Dewey v. Field, 13 How. Pr. 439 .

5. The special term has found in effect that the trial of the issues will require the examination of a long account. We think, upon a full consideration of all the matters alleged in the pleadings, and in the affidavits before the special term, the finding was warranted, and we are notdisposed to interfere with the same. In Welsh v. Darragh, 52 N. Y. 592 , in the course of the opinion delivered, Chief Judge Church says: “This court will not review the finding below, that the action involves the examination of a long account, if the facts will warrant such a finding. If the facts show that the examination of a long account may be necessary, and the court below has decided to refer the action, this court will not interfere. It is only when it is palpable that no such account can be involved that an appeal will lie to this court. Kain v. Delano, 11 Abb. Pr. (N. S.) 29.” In one of the affidavits used upon the motion it was stated: “This action will involve the examination of a long account, embracing over five hundred different items, including the computation of interest on over seventy-five different items and rests, extending over a period of thirty years.” We think the conclusion reached at the special term should be sustained. Order affirmed, with $10 costs and disbursements. All concur.