In re the Judicial Settlement of the Account of Proceedings of Finn

238 A.D. 795

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1933
• Status: Published

Opinion

Decree of the Surrogate’s Court of Suffolk county, in so far as appealed from, reversed on the law, without costs, and the trustee reinstated, without prejudice to a new proceeding. It is to be noticed that the approval of the trustee’s acts and his removal were inconsistent. Without the issuance of a petition therefor and a citation thereon, a trustee may not be removed by a surrogate except where the trustee has been guilty of acts coming within the enumeration set out in section 104 of the Surrogate’s Court Act. That with which the appellant is charged does not come within that section. Hence the surrogate was not authorized to remove him. The acts of which complaint is made may only be the subject of a removal proceeding instituted and prosecuted in accordance with sections 99 and 100 of the Surrogate’s Court Act. The enlargement of jurisdiction of the Surrogate’s Court, particularly with reference to the conferring of equitable powers, does not dispense with the need for compliance with the procedural requirements set out in the Surrogate’s Court Act when the exercise of those powers is invoked. Gould v. Gould (203 App. Div. 807) is not to the contrary, and recognizes that in some particulars the practice with respect to similar subject-matter differs in the Surrogate’s Court from that obtaining in the Supreme Court. Lazansky, P. J., Kapper, Carswell, Scudder and Davis, JJ., concur.