In re Hanly — 34 N.Y.S. 998

Majority

p. 998

In re HANLY.

(Supreme Court, General Term, Second Department.

June 14, 1895.)

Headnote

Abatement—Accounting by Guardian—Suit Pending.

An accounting by a guardian is properly directed, notwithstanding that in a pending partition suit the ward has pleaded that the guardian has collected rents belonging to the ward, where the papers in the proceeding for the accounting show that the rents are not matters for which the account is claimed.

Appeal from surrogate’s court, Kings county.

Petition of James M. Hanly, guardian of Joseph F. Hanly, for an order requiring Dennis Murphy, administrator of Anna T. Murphy, deceased, to render an account of the proceedings of Anna T. Murphy as guardian of Joseph F. Hanly. From such an order, Dennis Murphy appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMÁN and PRATT, JJ.

Spellissy & Gray, for appellant.

Lamb, Osborne & Petty (Gilbert D. Lamb, of counsel), for respondent.

The surrogate directs a judicial settlement of the account of Anna T. Murphy as general guardian of Joseph F. Hanly. It is objected to on the ground that in a pending partition suit Joseph F. Hanly has pleaded that Anna T. Murphy has collected rents belonging to Hanly, for which an account is asked. The pleadings before the surrogate show that the rents are not matters for which an account is claimed. It follows that full relief cannot be given in the partition suit, and the accounting before the surrogate is necessary.

Order appealed from affirmed, with costs. All concur.