Majority
p. 110In the Matter of the Petition of James M. Hanly, as Guardian, etc., of Joseph F. Hanly. Dennis Murphy, App’lt. (Supreme Court, General Term, Second Department, Filed June 14, 1895.)
Headnote
Former adjudication—Suit pending.An accounting by a guardian is not barred by a partition suit, in whitit the ward pleaded that the guardian collected rents belonging to him, where-it appears that no accounting as to such rents was had in such action.
Appeal from an order, directing Dennis Murphy as administrator of Anna T. Murphy, deceased, to render an account of the proceedings to Anna T. Murphy as guardian of Joseph F. Hanly.
Spellissy & Gray, for app’lt; Lamb, Osborne & Petty (Gilbert Zt Lamb, of counsel), for resp’t.
The surrogate directs a judicial settlement of the account as Hanly. It is objected to oh 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.