Lewis v. Maloney — 19 N.Y. Sup. Ct. 207

Majority

p. 207

CHARLES R. LEWIS and EDGAR A. VAN HORNE, Executors, etc., of THOMAS MALONEY, Deceased, Appellants, v. JOHN MALONEY, General Guardian of ANASTASIA MALONEY, Respondent.

Headnote

Legacy — action for, pending in Supreme Court, aba/r to proceedings before surrogate.

Tlie respondent commenced an action in tlie Supreme Court against tlie appellants, as executors, to recover a legacy alleged to have been left to him by the will of the appellants’ testator. Subsequently, and while such action was pending, he instituted proceedings before the surrogate requiring the executors to appear and render their account and pay over to him the said legacy. Held, that the action commenced in the Supreme Court was a bar to the subsequent proceedings instituted before the surrogate.

Appeal from a decroe of the surrogate of Oswego comity directing the appellants, as executors of Thomas Maloney, to pay over to the respondent, as general guardian of A. Maloney, a legacy of $200 bequeathed to her by the testator.

B. B. Burt, for the appellants.

JD. P. Lester, for the respondent.

This is an appeal from the order of the surrogate of Oswego county, directing that the appellants, as executors of the estate of Thomas Maloney, pay to the respondent John Maloney, as general guardian of Anastasia Maloney, the sum of $200, left as a legacy to her by the will of the testator, Thomas Maloney. Before the surrogate the executors put in a formal answer to the citation, in which they state that the petitioner, as general guardian of Anastasia Maloney, commenced an action in the Supreme Court against the defendants, as such executors, for the recovery of the same legacy, in which suit he demands judgment for the said sum of $200, with the interest and costs of the action, and that the said action is still pending and undetermined.

And they offer, if the said petitioner will discontinue his said action in the Supreme Court, then that the proceeding before the

p. 208

surrogate may be continued; or that, if he will discontinue the proceedings before the surrogate, then that they are willing that the action may proceed and have the rights of the parties determined therein. They also deny a sufficiency of assets to pay said legacy, saying that the estate is invested in' bonds and mortgages not yet due. The surrogate overruled the said answer and held, as his order states, that the said answer was not a sufficient defense to the said application. In this we think the surrogate erred.

The Supreme Court has concurrent jurisdiction with the surro' gate to enforce the payment of legacies. (2 R. S., 114, § 9.) The surrogate has also the same jurisdiction, and if the same party who commences an action against an executor or administrator, subsequently cites him to account beforfe the surrogate, the pendency of the action in the Supreme Court, for the same object, ought to be allowed by the surrogate as a valid objection to the proceeding before him for the same object. 1 •

Where there are two proceedings pending between the same parties for the same object, the proceedings first commenced are a bar to those commenced afterwards. The principle governing such cases is, that if full relief can be had in the one proceeding, or action, no other shall be allowed. (Rogers v. King, 8 Paige, 210; Groshon et al. v. Lyon, 16 Barb., 461 ; in which the case of Rogers v. King [supra] is fully approved.)

The counsel for the respondent insists that there was no evidence offered to sustain the allegations of the answer of the executors, but it does not appear that the allegation of an action pending for the same cause was-denied, and, at all events, it does appear that the surrogate held that the matters set up in the answer constituted no defense, wherefore it would have been superfluous to have offered to substantiate them by evidence.

The order of the surrogate of Oswego county appealed from is reversed, with costs to be paid by the respondent personally, and not charged against the legacy.

Present — Talpott, P. J.,. Smith and Mekwin, JJ.

Ordered accordingly.