PER CURIAM.
[1] Thé judgment entered in the action in this court wherein this appellant was plaintiff and this respondent was defendant established nothing more than that the decree of the surrogate, entered on the accounting of the respondent in the Surrogate’s Court, was not procured by fraud, and so was good until set aside. The merits of the issues involved in the proceeding in which the surrogate’s decree was made were not involved in the action in this court, and hence appellant, ás to such issues, was not concluded by the judgment therein.
[2] Nor is this result affected by the fact that the Supreme Court had co-ordinate jurisdiction with the Surrogate’s Court to settle the executor’s account, inasmuch as the decree of that of the two' courts which first assumed jurisdiction would be binding upon the other, and an effectual bar to a second action. Upon the merits of the order appealed from, we are not satisfied with the decision made by the learned surrogate. Without intending to express any opinion upon the facts as they may ultimately appear, we think there was sufficient in the moving papers to have induced the learned surrogate to grant appellant’s motion to set aside the decree settling respondent’s accounts, and to give appellant a day in court to prove whatever facts she can, justifying a resettling of such accounts.
The order should be reversed, with $10 costs and disbursements, the motion granted, and the proceedings remitted to the surrogate, to proceed in accordance with this opinion.
DOWLING. T.. dissents.
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