Peyser v. Wendt — 84 N.Y. 642

Majority

p. 642

John F. Peyser et al., Appellants, v. Frederick B. Wendt, as sole Surviving Executor, etc., et al., Respondents.

Headnote

An action for an accounting and partition and other relief is not entitled to ' a preference because the construction of a will is incidentally involved therein.

To give a cause a preference under the Code of Civil Procedure (§ 791, subd. 5),as “an action for the construction of or adjudication upon a will,” it must be expressly brought for that purpose.

(Argued February 1, 1881;

decided February 8, 1881.)

This was a motion to strike this cause from the preferred calendar.

p. 643

The action was for an accounting by the executors of the will of David M. Peyser, deceased, and for the partition of his real estate.

Preference was claimed upon the ground that the action involved the construction of the will of the deceased. The court say:

“ To give this cause the preference claimed, it must be an action expressly brought ‘ for the construction of or an adjudication upon a will.’ This is an action for an accounting and partition and other relief, and it matters not that the construction of a will is incidentally involved.”

Charles Wehle for motion.

George A. Black opposed.

opinion for granting motion.

All concur.

Motion granted.