Hotchkiss v. Hotchkiss — 19 N.Y. St. Rep. 767

Majority

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Maria H. Hotchkiss, Adm’x, etc., et al., App’lts, v. Charles A. Hotchkiss, Resp’t. Maria H. Hotchkiss, Adm’x, etc., et al., App’lts, v. Annie M. Hotchkiss, Resp’t.

(Supreme Court, General Term, First Department,

Filed November 24, 1888.)

Headnote

1. Injunction order — What it should contain — Code Civ. Pro. , §§ 6U3-610.

An injunction order -which contains no statement of a ground for granting the same, except that it appears by the complaint that the plaintiff’s demand andaré entitled to judgment against the defendant, restraining the creation or continuance of an act, the commission or continuance of which during the pendency of the action would produce injury to the plaintiff, does not comply with Code Civil Procedure, section 610, which requires that the ground for the order be recited.

2. Same—What must be shown to entitle party to order restraining SURROGATE.

In the action brought to obtain a perpetual injunction restraining the defendants from requiring the plaintiffs to come before a certain surrogate, it appeared that after the expiration of eighteen months from the time that letters of administration were issued to the plaintiffs, they were cited to appear before the surrogate and render their account. The defendants alleged in their petition before the surrogate that they were creditors of the estate of the decedent. The plaintiff’s papers did not allege any action, or want of action, of the surrogate to the detriment of plaintiffs, and it was not shown that he had unjustly or erroneously refused to hear the objections made by plaintiffs to the claims presented by the petitioners in that court, and that he had refused to hold that the petitioners were not creditors. Neld, that the plaintiffs do not show themselves to be in a position to ask the interference of the supreme court

Appeal by the plaintiffs from an order of the special term, refusing to continue an injunction order, and vacating a preliminary stay.

C. B. Alexander, for app’lts; F. C. Reid, for resp’t.

These cases may be considered together. No ground for granting the order is stated, except in the language of the Code, section 603, to the effect that it appears by the complaint that the plaintiffs demand and are entitled to judgment against the defendant, restraining the creation or continuance of an act, the commission.

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or continuance of which during the pendency of the action would produce injury to the plaintiffs.

This is not a compliance with section 610 of the Code of Civil Procedure, which requires that the grounds for the order be recited.

Irrespective of this consideration, however, it appears from the nature and the substance of the actions, that the plaintiffs have not suffered, and are not in such imminent danger of suffering, any damage as would entitle them to come into this court, either for restitution of any rights of which they have been deprived, or for the prevention of any wrong which is threatened to be done to them.

The purpose of these actions is to obtain perpetual injunctions restraining the defendants from .requiring the plaintiffs to account before the surrogate of the county of New York.

After the expiration of eighteen months and upwards, from the time letters of administration were issued to them, the plaintiffs were cited to appear before the surrogate and render their accounts. The defendants allege respectively, in their petitions before the surrogate, that they are creditors of the estate of B. B. Hotchkiss, deceased, One of them (Anna M. Hotchkiss), in the sum of $5,000, and the other in the sum of $1,199.47, for various expenses incurred, besides a claim for four shares of Dry Dock, East Broadway and Battery Railroad Company’s stock, of New York city, together with a four hundred dollar certificate of the indebtedness of the same road.”

These petitions were filed and served on the 14th day of November, 1887.

In their complaint the plaintiffs allege that after the expiration of the six months since the granting of the letters to them, they inserted a notice once in six weeks for six months in the proper newspapers, and that such publication provided by law terminated on the 18th day of July, 1886.

It is further alleged that on the 22d day of May, 1886, one Phineas T. Barnum, presented the identical promissory note in question to' these executors, which was promptly rejected by the plaintiffs, and the same was afterwards transferred to the defendant, Anna M. Hotchkiss.

In regard to the claim of the defendant, Charles A. Hotchkiss, it was alleged that the plaintiffs have endeavored to repay him for the funeral expenses of their intestate disbursed by him, but he has refused to receive the same. As to the residue of the claim of the defendant, Charles A. Hotchkiss, the plaintiffs set up an agreement whereby a compromise was to be effected thereon through an application to the surrogate upon the consent of all

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parties, -which application the surrogate granted on the 28th day of November, 1887.

The plaintiffs deny wholly the claim of the defendant, Charles A. Hotchkiss, and seek to avoid liability upon the claim of Anna M. Hotchkiss as above stated.

The only ground of; objection that there appears to be to the claim of Charles A. Hotchkiss is that the note is barred by the short statute of limitation by reason of the failure of that defendant to bring an action thereon after the rejection of the same by the administrators while it was yet in the hands of Phineas T. Barnum.

A most noticeable defect in the plaintiffs’ papers is the omission to allege any action or want of action on the part of the surrogate to the detriment of the plaintiffs. It is not shown that he has unjustly or erroneously refused to hear objections made by the plaintiffs to the claims presented by the petitioners in that court, or that he has refused to hold that the petitioners are not creditors. The proposition that the surrogate should pass upon a disputed claim is not contended for by either of the parties. Nowhere is there any allegation showing that the surrogate has not or will not proceed upon the petitions before him according to law and to the facts presented before him.

If it shall turn out that the surrogate has no power under the statute to pass upon the validity of either of these claims he will undoubtedly in due time say so, and refuse to proceed. If he shall omit or in any respect fail to determine the legal rights of the plaintiffs in a manner within the jurisdiction accorded to him by law, the application of the plaintiffs would be timely, but until then the plaintiffs do not seem to be in a position to ask the interference of this court.

The order appealed from should be affirmed, with ten dollars costs as of one action and disbursements in both.

Van Brunt, P. J., concurs; Bartlett, J.. concurs in the result.