Reilly v. Wygant

11 A.D.2d 647, 201 N.Y.S.2d 225, 1960 N.Y. App. Div. LEXIS 9424

Opinion

Order unanimously reversed on the law and in the exercise of discretion, with $20 costs and disbursements to appellants, and the motion to dismiss the complaint is granted to the extent of declining to entertain jurisdiction, without prejudice to relief in the Surrogate’s Court of Orange County in an appropriate proceeding. Undoubtedly, the Supreme Court has jurisdiction of this action brought by the brother of the decedent to enforce a contract allegedly made with decedent, during her lifetime, wherein the decedent is claimed to have promised to leave all of her property to plaintiff. (Tutunjian v. Vetzigian, 299 N. T. 315; Olsen v. Olsen, 189 Mise. 1046; Crempa v. Oakley, 9 Mise 2d 583.) However, under the eirermstanees of this case the appropriate tribunal to determine plaintiff’s claim is the Surrogate’s Court which has concurrent jurisdiction in a suitable proceeding there. (Surrogate’s Ot. Act, § 40; 1 Warren’s Heaton, Surrogates’ Courts [6th ed.], pp. 198-199, 212-213; see, also, MoMer of Venblow, 2 A D 2d 365.) The will was probated in the Surrogate’s Court of Orange County in a proceeding in which plaintiff was cited as a party. The estate consists of two parcels of real property located in Orange County. Complete relief can be obtained by plaintiff in an accounting proceeding in the Surrogate’s Court of Orange County. Hence, a proper exercise of discretion dictated a decline of jurisdiction in this case. Concur — Botein, P. J., Rabin, Valente, Stevens and Noonan, JJ.