Opinion
July, 1910.
Niles Johnson (W.W. Niles, of counsel), for defendant and motion.
Edwin R. Leavitt (Frederick H. Clarke, of counsel), for plaintiff, opposed.
I think there is no doubt that the facts alleged in the complaint would give the Surrogate's Court jurisdiction to remove the trustee, and that that court would have power to give the plaintiff all the relief demanded in his complaint and all the relief to which the complaint shows him to be entitled. If the decrees made by the Surrogate's Court on the former accountings stand in the plaintiff's way they would do so equally in an action in this court as in a proceeding in the Surrogate's Court. Code Civ. Pro., § 2813; Bowditch v. Ayrault, 138 N.Y. 222, 231; Matter of Elting, 93 A.D. 516, 517, 518, and cases cited. The plaintiff argues that it may turn out that other parties will have to be brought in and other relief demanded of a character which the Surrogate's Court is unable to give. The answer to this, however, is that the complaint must show not merely that such relief may be required, but that it will be required (Matter of Smith, 120 A.D. 199, 200; Post v. Ingraham, 122 id. 738, 739; Pyle v. Pyle, 137 id. 568, 571, and cases cited); otherwise this court will refuse to take jurisdiction. There can be no doubt that the Supreme Court has jurisdiction of a cause of action such as the present, and consequently a demurrer will not lie to the complaint for lack of jurisdiction (Mildeberger v. Franklin, 130 A.D. 860); but it seems to me that this is a proper case for an application for judgment upon the pleadings under section 547 of the Code of Civil Procedure. If the court is to decline jurisdiction it seems eminently proper that it should be done upon an application of this kind at the outset of the case, rather than that the action should await its turn upon the trial calendar only to be dismissed when reached after the delay and the unnecessary labor and expense of preparing for the trial. As already noted, the objection to the assumption of jurisdiction by this court cannot be taken by demurrer, and it is consequently properly raised by motion at the trial. Mildeberger v. Franklin, supra. But the purpose of section 547 of the Code is to obviate the necessity of waiting until the trial to make motions which arise upon the pleadings and can be determined from an inspection thereof, and the practice is analogous to that on a motion to dismiss at the opening of the trial. Clark v. Levy, 130 A.D. 389; Schleissner v. Goldsticker, 135 id. 435. The rule is so well settled that this court will not take jurisdiction of an action of this character unless special facts are pleaded which show the exercise of its jurisdiction to be necessary; that the question whether or not jurisdiction will be assumed in a particular case can hardly be said any longer to rest in the discretion of the court. But even if it be regarded as a matter of discretion I know of no principle which prevents the exercise of that discretion by the court sitting at Special Term for the hearing of motions, while there are practical reasons in favor of the determination of such a question in that manner rather than in the less deliberate way in which it would ordinarily be passed upon at the trial. Motion granted, with ten dollars costs, with leave, however, to the plaintiff to serve an amended complaint ten days after the service of a copy of the order to be entered hereon upon payment of such motion costs and the costs of the action. If such amended complaint be served and costs paid, the motion for judgment will be denied.
Motion denied.