Roland v. Adirondack National Bank & Trust Co.

262 A.D. 1049

Opinions

Appeal by the plaintiffs from an order of the Supreme Court, entered in the FranHin county clerk’s office on May 8, 1941, as resettled by an order entered on July 24, 1941, and also an appeal by the plaintiffs from an order entered in the Warren county clerk’s office on May 5, 1941. The first order denied plaintiffs’ motion to stay the respondent from proceeding with an accounting proceeding in the Surrogate’s Court of Franklin county. The second order changed the place of trial from the county of Warren to the county of Franklin.

The action seeks the removal of the defendant bank as testamentary trustee, the appointment of a successor, an accounting, certain surcharges and the annulment and cancellation of record of a deed of real property and a direction that the respondent be required to accept from its successor a deed of the property to itself individually without compensation, together with such other relief as may be equitable. The real property is located in Franklin county and the place of trial was changed from Warren county to Franklin county on the ground that Franklin county was the proper venue. Service of the summons in the instant action was completed before service of the citation in the accounting proceeding in the Surrogate’s Court of Franklin county was obtained, although the petition therefor was filed before the completion of the service of the summons in the action.

Order changing the place of trial affirmed, without costs. Order denying stay reversed on the law and facts and motion for stay granted, without costs.

Hill, P. J., Crapser, Bliss and Foster, JJ., concur; Sehenck, J., dissents with an opinion.