
    Mary C. Morrell, Appellant, v. Ernest H. Ball, as Assignee of Edward B. Cuthbert, Respondent, Impleaded with Edward B. Cuthbert and Another.
    
      Action to remove, for misconduct, an assignee for creditors,— the compldint is not demurrable because the remedy is by petition and citation.
    
    The question whether the circumstances are so exceptional that the court will assume jurisdiction of an action to remove an assignee for the benefit of cred. itors, because of his misconduct, and to obtain an accounting, or will relegate-the plaintiff to his remedy by petition and citation, cannot be raised by demurrer, but "only by a motion at the trial.
    Appeal by the plaintiff, Mary C. Morrell, from a judgment of the Supreme Court in favor of the defendant Ernest H. Ball, as assignee for the benefit of creditors of Edward B. Cuthbert, entered in the office of the clerk of the county of New York on the 23d day of August, 1899,.upon the decision of the court-, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint and dismissing the complaint.,
    
      E. F. Bullard, for the appellant.
    
      Milton Hopkins, for the respondent.
   O’Brien, J. :

The action was brought to secure the removal of the assignee for misconduct and, as incidental thereto, to obtain an accounting ; and the facts essential to such a cause of action are set forth in the complaint. It was held, however, that the demurrer was good for the reason that an action would not lie to obtain such relief, but that, the plaintiff’s CQurse was to proceed by petition and citation. The case upon which such ruling was based is that of Stoerzer v. Nolan, as Assignee of Durlands Riding Academy Co., etc. (19 App. Div. 338). It was therein held, as stated in the head note, that while a. creditor proceeding against an assignee for the benefit of creditors-may do so by action or by petition and citation, the court “ having prescribed the latter form of procedure by its rules, a creditor has no right to insist upon adopting the remedy by action to compel such an acounting — the right of election as to the form of procedure lies-with the court and not with the creditor.” And in the opinion it is-further stated that the jurisdiction of the court to proceed either by action or by petition and citation, was given by chapter 380 of the-Laws of 1885, which “ conferred upon the Supreme Court and its justices the same jurisdiction formerly held by County Courts and county judges under the General Assignment Act. (Chap. 466, Laws 1877.)”

That case, however, is not an authority for the proposition that, the court has not jurisdiction of such an action, but only holds that, unless exceptional circumstances are shown, the court should refuse to entertain juilsdiction. The demurrer here was upon the ground that the complaint did not state facts sufficient to constitute a cause-of action, and was interposed for the purpose of obtaining a ruling that the court would not assume jurisdiction. This question cannot: properly be raised by demurrer, but the court, at the trial, should determine whether the facts pleaded were of such an exceptional character that it would permit a .trial of the issues.

Thus it was said in Standard Fashion Company v. Siegel-Cooper Company (157 N. Y. 60, 68): “ The office of a demurrer is to sweep away a defective pleading, and in the case. before us it attacks the substance of the complaint; yet the complaint is good in substance. * * * "While it is true that the court, in its discretion, may not hear the cause, or, after a hearing, may refuse relief, *. * * still, this does not make the complaint defective nor authorize a general demurrer, which ‘must be founded upon the absolute, certain and clear proposition that, taking the charges in the bill to be .true) the bill would be dismissed at the hearing.’ (Beach on Equity Practice, § 225.) Upon the facts before us it is in the power of the court to enforce the agreement. * * * As there was complete jurisdiction and a perfect cause of action against both defendants, the demurrers must be overruled. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451.)”

Our conclusion, therefore, being that the question of whether the court will or will not exercise its jurisdiction cannot properly be raised by demurrer to the complaint, the judgment below was erroneous and should be reversed, with costs, and the demurrer overruled, with costs, but with leave to the defendant to withdraw" the ■demurrer and to answer upon payment of' the costs.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and answer on payment of costs in this court :and in the court below.  