Schoelles v. Zausmer , 157 N.Y.S.2d 190 ( 1956 )

In an action for money loaned to respondents, the appeal is from an order granting a motion under section 190-a of the Civil Practice Act to remove said action to the Surrogate’s Court, Nassau County. Order reversed, with $10 costs and disbursements, and motion denied, without costs. It appears from the complaint that respondents are also executors of a decedent’s estate. The amended answer alleges that the loans were made under an agreement that the estate would be liable for payment thereof and that the estate has made payment to the appellant. It further appears that two other proceedings involving the same parties are pending in said Surrogate’s Court and for that reason the issues raised in this action might be heard conveniently in the Surrogate’s Court. However, the transactions here in suit are those of living persons, there being no allegation or claim of any transaction with the decedent. The Surrogate’s Court is without jurisdiction to adjudicate actions at law for recovery of common debts or to enforce ordinary contract obligations. (Surrogate’s Ct. Act, § 40; Matter of Thomas, 235 App. Div. 450; Matter of Noel, 246 App. Div. 740; Lesser v. Ringelheim, 1 A D 2d 843, motion for leave to appeal denied 1 A D 2d 905; Matter of Trevor, 309 N. Y. 389.) Nolan, P. J., Murphy, Ughetta and Hallinan, JJ., concur; Beldock, J., dissents and votes to affirm, with the following memorandum: Although the original action at law could not he commenced in the Surrogate’s Court, that does not mean that the Supreme Court law action could not he transferred for trial to the Surrogate’s Court in a proper case pursuant to section 190-a of the Civil Practice Act. (5 Warren’s Heaton on Surrogates’ Courts, § 473.) The majority admits that the issues raised in this action may be conveniently adjudicated in the Surrogate’s Court. In my opinion, the order granting the transfer was a proper exercise of discretion.