In re the Judicial Settlement of the Estate of Llado , 50 Misc. 227 ( 1906 )

Church, S.

A motion is made to dismiss the present proceeding or else have the same stayed, until the disposition of a case in Flew York county which covers the same state of affairs.

It is, of course, understood that the Supreme Court .and the Surrogate’s Court have equal jurisdiction in regard to many matters, and there is no statutory rule which provides that, in the event of one tribunal acquiring jurisdiction such jurisdiction shall thereupon become exclusive; but, in view of the fact that, if it were otherwise, there would be a multiplicity of proceedings to accomplish the same results and that litigants might thereby be subjected to undue annoyance and additional labor be imposed upon the courts, the courts have confined the parties to the tribunal which first acquires jurisdiction of the proceeding.

In this matter the rule is well stated in Ludwig v. Bungart, 48 App. Div. 613, as follows: “ The rule is that where both tribunals have equal jurisdiction the case should be retained and disposed of in the forum where judicial action was first sought.” This rule was applied in Matter of Hojer, in which it was held that where there were certain matters at issue in one court which could not be disposed of in the other, the second court was not ousted of jurisdiction by reason of the prior application to the first tribunal.

The sole question, therefore, in any case where this rule is invoked, is to see if the court which has first taken up the consideration of the matter has anything before it which could be ■decided in the proceeding in any other court. In the case at bar it appears that, a few days before the filing of the petition for an accounting herein, a suit was started in the Supreme Court. The complaint was not served with the summons in that action but, on the contrary, papers were filed which required the attendance and examination of the executor, who is accounting herein, so that the complaint could be framed. By turning to the affidavits stating the object of this suit, it plainly appears that the scope of the action in the Supreme Court would completely cover the examination and adjudication of every question which could be raised upon this accounting.

In deference, therefore, to the rule thus laid down by the-Appellate Division of the Supreme Court, I will grant the application and direct that proceedings herein be stayed until the-determination of the action in the Supreme Court.

Application granted and proceedings stayed until determina- - tion of action in Supreme Court.