Shea v. Shea

265 A.D. 962, 38 N.Y.S.2d 711, 1942 N.Y. App. Div. LEXIS 6754

Opinion

In the light of all the circumstances, the granting of the motion was an improper exercise of discretion. Plaintiff was expressly afforded a right of action pursuant to. statute. (Decedent Estate Law, § 146; Surrogate’s Court Act, § 211.) While the rule that the Supreme Court will not retain jurisdiction where the Surrogate’s Court has concurrent jurisdiction would, nevertheless, ordinarily prevail (Noll v. Ruprecht, 256 App. Div. 926; affd., 282 N. Y. 598), no timely application was addressed by the defendants to the discretion of the Supreme Court. Although the action was commenced in the Supreme Court on March 21, 1941, the defendants did not make such application until the action was ready to he tried on October 26, 1942. Under these circumstances, and in the light of the fact that a simple issue was presented, namely, as to the marriage of plaintiff with decedent, so that no advantage would be obtained by transfer to the specialized jurisdiction of the Surrogate’s Court, the trial should have proceeded. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.