Opinion
November 13, 1961
In an action by Abraham Greenfield, one of the three sons of Rose Greenfield, deceased, to cancel, on the ground of fraud and undue influence, her deed conveying two parcels of real property owned by her to the corporate defendant which is owned and controlled by another son, the defendant Charles Greenfield; to invalidate, on the same ground, her transfer to said son Charles of all the funds in a certain bank account in her name; to declare that such funds are her property; to impress a trust upon such real property and funds for the benefit of all her heirs and distributees; and for other incidental relief, all the defendants appeal as follows from an order of the Supreme Court, Rockland County, dated March 24, 1961: (1) The defendant corporation and the defendant Charles Greenfield, individually and in his capacity as executor and administrator, appeal from so much of said order as denied their motion to transfer this action to the Surrogate's Court for determination, or to dismiss the complaint for patent insufficiency, or to compel plaintiff to serve an amended complaint separately stating and numbering his alleged causes of action. (2) The defendant Isidore Greenfield, the third son, individually and in his capacity as executor, appeals from so much of said order as denied his motion to dismiss the complaint for patent insufficiency or to compel plaintiff to serve an amended complaint separately stating and numbering his alleged causes of action. Order modified by striking out the first decretal paragraph denying the motions "in all respects;" by striking out the second decretal paragraph directing all the defendants to serve their answers to the complaint; and by substituting therefor the following: (1) A decretal paragraph granting the motion of defendant Isidore Greenfield individually to dismiss the complaint for insufficiency as against him individually; and denying in all other respects the motion of said defendant individually; (2) A decretal paragraph denying in all respects the motion of defendant Isidore Greenfield in his capacity as executor; (3) A decretal paragraph denying in all respects the motion of the defendant corporation and of the defendant Charles Greenfield individually and in his capacity as executor and administrator; and (4) A decretal paragraph directing all the defendants, other than the defendant Isidore Greenfield individually, to serve their answers to the complaint. As so modified, the order is affirmed, without costs. The time of the defendants (other than the defendant Isidore Greenfield individually) to serve their answers is extended until 20 days after entry of the order hereon. It is doubtful that the Surrogate's Court would have jurisdiction of the action to set aside the transfer of the real property in view of the fact that the relief sought is by plaintiff individually against defendants Charles Greenfield and Isidore Greenfield as individuals, for their acts before the death of their mother, Rose Greenfield. Where the power of the Surrogate's Court to grant relief is in doubt, while the plenary power of the Supreme Court to do so is clear, a motion to transfer an action from the Supreme Court to the Surrogate's Court should be denied (cf. Wyatt v. Fulrath, 13 A.D.2d 250). The complaint states a cause of action against all defendants other than Isidore Greenfield individually, both with respect to the transfer of the real property and the personal property. While ordinarily, as a distributee of his mother's estate, plaintiff would have no independent cause of action in his own right to recover the personal property allegedly transferred to another by the mother during her lifetime, nevertheless, on the refusal of the administrator (plaintiff's brother, Charles), after due demand, to bring such an action, plaintiff may properly do so ( Bonham v. Coe, 249 App. Div. 428, affd. 276 N.Y. 540). Here, such demand is not necessary because the administrator himself is the transferee and the claimed wrongdoer. The complaint demands that the deed to the real property and the transfer of the bank account be set aside, that the money withdrawn from the bank account be declared to belong to the mother and to be part of her estate, and that defendants be declared to be trustees of all such property; the complaint also seeks an accounting and an injunction. As against defendant Isidore Greenfield individually, the complaint is insufficient because there is no claim that he received any of the assets involved. Therefore, none of the relief requested may be obtained as against him. The denial of the motion to compel plaintiff to serve an amended complaint separately stating and numbering his causes of action, was not an improvident exercise of discretion. Nolan, P.J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.