Steinway v. . Von Bernuth

The Appellate Division certifies that the following question of law has arisen, which in its opinion ought to be reviewed by this court, viz.: "Should the Supreme Court entertain jurisdiction of an action in equity against an executor for an accounting and relief incident thereto, when the plaintiff can obtain such accounting and such relief by a proceeding against the said executor in a Surrogate's Court?"

In view of the allegations of the complaint, which must be taken as true for the purposes of this appeal, we do not feel called upon to answer the question submitted. As framed it asks this court to pass upon the propriety of the Supreme Court exercising its discretion on a state of facts not presented by the complaint. The complaint tenders an issue that cannot be tried in the Surrogate's Court and the accounting prayed for is incidental to the main relief sought.

The question certified must, therefore, be regarded as containing an abstract statement of facts which cannot be reviewed by this court. (Schenck v. Barnes, 156 N.Y. 316,323, and cases cited; Matter of Coatsworth, 160 N.Y. 114, 123.)

The appeal should be dismissed, with costs.

PARKER, Ch. J., HAIGHT, VANN, LANDON, CULLEN and WERNER, JJ., concur.

Appeal dismissed.