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In re the Accounting of Vass

277 N.Y. 289 Court N.Y. Decision date 1938-03-08 English

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p. 289
In the Matter of the Accounting of Katerina Vass, as Administratrix with the Will Annexed of Anna Kvetkoff, Deceased, Respondent. Morris Weiss, Appellant.
p. 290
Argued January 27, 1938;
decided March 8, 1938.
p. 291
Samuel Weiss for appellant.
The order of the Supreme Court did not oust the Surrogate of jurisdiction. (Matter of Regan, 167 N. Y. 338 ; Matter of Fitzsimons, 174 N. Y. 15 ; Bailey v. Murphy, 136 N. Y. 50 ; Matter of Wood, 170 App. Div. 533 .)
Emanuel Loebel for respondent.
The Surrogate’s decision that he was ousted of his jurisdiction by the order obtained in the Supreme Court and the order dismissing the objections was proper. (Matter of Waverly, 141 N. Y. Supp. 1054 ; Lewis v. Maloney, 12 Hun, 207 ; Matter of De Pierris, 79 Hun, 279 ; Matter of Patterson, 63 Hun, 529 .)

Nothing in the order of the Supreme Court deprived the Surrogate’s Court of its jurisdiction to direct the respondent-administratrix to account to the appellant. While that order fixed the amount of the appellant’s lien and directed payment thereof out of the estate, the question remained whether and, if so, to what extent, the distributable estate was sufficient for that purpose after determination of the respective rights of the persons entitled to distribution. It was, therefore, error to dismiss the appellant’s objections on the ground that he had no interest in this proceeding.

The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed, with costs in all courts to the appellant, payable out of the estate, and the matter remitted to the Surrogate’s Court for further proceedings in accordance with this opinion.

Crane, Ch. J., Lehman, O’Brien, Lotjghran, Finch and Rippey, JJ., concur; Hubbs, J., taking no part.

Ordered accordingly.

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