
    (90 Hun, 108.)
    BARKER et al. v. LANEY.
    (Supreme Court, General Term, Fifth Department.
    October 16, 1895.)
    1. Set-Off and Coun trrclaim—Judgments.
    After a decree of the surrogate’s court had been rendered, directing the administrator to pay the widow a specified sum as a portion of her distributive share, the executor sued her for an accounting and to set off the amount of advances made to her against the decree, and recovered a personal judgment for the excess of such advances over the decree. Subsequently the surrogate’s court rendered in favor of the widow another decree for the balance of her distributive share. Held that, on a complaint setting forth such facts and demanding an accounting, and ' that the amount of the advances be set off against the second decree, the court could set off the judgment against the second decree.
    
      2. Judgment—Res Judicata—Jurisdiction of Surrogate’s Court.
    Where the widow contends that she did not receive advances consisting of merchandise, claimed to have been made to her by the administrator, and also disputes their value, the surrogate’s court, on an accounting by the administrator, cannot pass on the disputed items, and therefore the executor is not estopped to sue the widow for an accounting, and to offset the judgment recovered against her on such accounting against the surrogate’s decree for her distributive • share.
    Appeal from judgment on report of referee.
    Action by Mandeville J. Barker and another, as executors of the last will and testament of Enos G-. Laney, deceased, against Mary K. Laney. From a judgment entered on the report of a referee directing that a judgment in favor of plaintiffs be set off against a decree in favor of defendant, the latter appeals. Affirmed.
    Argued before LEWIS, BRADLEY, WARD, and DAVY, JJ.
    Quincy Van Voorhis, for appellant.
    Bacon, Briggs, Beckley & Bissell (Frederick W. Smith of counsel), for respondents.
   DAVY, J.

It appears from the evidence in this case that in March, 1885, James Laney died intestate, leaving the defendant, Mary K. Laney, his widow, and Charles S. Laney and James C. Laney, his only children and next of kin, surviving. Enos G-. Laney and the defendant were appointed by the surrogate of Monroe county administrators of his estate. It also appears that Enos G-. Laney purchased and delivered to the defendant at various times between March 20, 1885, and February 8, 1890, large quantities of goods, wares, and merchandise, and advanced some money, in anticipation that they would be set off and allowed to him by the surrogate out of tire defendant’s distributive share of the personal estate of her deceased husband. In 1887 the administrators filed their joint petition in the surrogate’s court for a settlement of their accounts. In that proceeding the surrogate did not allow Enos Gr. Laney any part of his said claims for advances, but ordered them stricken out, on the ground that they were unauthorized, and constituted no part of his official account as administrator. He also held that he had no jurisdiction to hear, try, and determine the validity of the claims, because they were disputed. In December, 1888, a decree was made by the surrogate directing Enos G. Laney to pay to Mary K. Laney, out of her distributive share in the estate, a specified sum of money. Thereafter, and on or about March 5, 1890, the defendant procured a transcript of said decree to be filed, and an execxition to be issued thereon and levied upon the property of Enos G. Laney to satisfy said judgment. Laney immediately brought an action to cancel the judgment on the ground that it had been paid by the advances made as aforesaid, and asked that the defendant be adjudged to account to him for all the moneys which he had advanced to her, and that she be restrained from enforcing the surrogate’s decree. The issues in that action were referred to a referee in March, 1890, who found that the" surrogate’s decree had been paid, and that the defendant had received from Enos G. Laney, by way of advances, several thousand dollars over and above the amount named in the decree, and he directed a money judgment against her for the balance. An appeal was taken from that judgment to the general term, which granted a new trial unless the plaintiff stipulated to deduct the sum of $1,934.40 from the judgment, but, in case the stipulation was given, the judgment should be affirmed. Laney v. Laney (Sup.) 19 N. Y. Supp. 518. A new trial was had before the same referee, who gave a judgment in favor of the plaintiff that the modified decree of the surrogate had been paid, and directed that the same be canceled of record. In April, 1890, Enos Gr. Laney had a final settlement of his accounts as such administrator, and the surrogate directed that he should pay to the defendant, Mary K. Laney, the additional sum of $6,878.49, it being the balance of her distributive share in the estate of her deceased husband. This action was then brought for an accounting between Enos Gr. Laney and the defendant for moneys loaned, paid, and advanced by him to her, and for judgment that the moneys so loaned, paid out, and advanced be applied and allowed as a set-off to said decree of the surrogate, and that said decree be satisfied and discharged to the amount of said loans, payments, and advances found to be applicable as a set-off. Upon the trial the plaintiffs put in evidence the judgment roll in the first action, but offered no other proof as to the alleged advances. The referee held that the plaintiffs were entitled in this action to have the money judgment recovered in the other action set off against the defendant’s second decree. In March, 1893, Enos Gr. Laney died, leaving a last will and testament, in which the plaintiffs were named as executors, and were thereafter substituted as the plaintiffs in this action.

The learned counsel for the defendant contends that the plaintiffs failed upon the trial to establish the cause of action alleged in the complaint; that the action was for an accounting, which did not authorize the court to offset the plaintiffs’ judgment against the defendant’s decree. The complaint, after setting forth the facts, demands judgment that the surrogate’s second decree be satisfied of record, and that the defendant account to the plaintiffs' for all the money which she had received from Enos Gr. Laney. It is true that the accounting asked for had been determined in the first action, yet that fact did not deprive the court of jurisdiction of the subject-matter and the parties to the action. The allegations of the complaint showed a clear case for an accounting, which gave the court of equity jurisdiction to try that question and such other issues as arose upon the trial that were incidentally connected with the accounting. It also had the power to do justice between the parties, and for that purpose to offset one judgment against the other. When the accounting was had before the first referee, the second and final accounting before the surrogate had not been had, so that the plaintiffs could not in that action set off the balance due them for advances until the second decree was rendered. It would seem as if this was a proper case for the interposition of a court of equity, because.it would be unjust to permit the defendant to enforce the collection of her decree when she was owing the plaintiffs a sum nearly equal to that amount, and thus put the plaintiffs to the expense, risk, and uncertainty of recovering it back. In a similar action between these same parties, an appeal was taken from the interlocutory judgment overruling the demurrer to the complaint, and this court affirmed the judgment, and held that an action of this character could be maintained. Laney v. Laney (Sup.) 11 N. Y. Supp. 319. The rule seems to be well settled that, when a court of equity obtains jurisdiction of the subject-matter, it is not affected by any changes which may arise in the trial so long as a cause of action survives upon the facts alleged. Lynch v. Railway Co., 129 N. Y. 274, 29 N. E. 315. Judge O’Brien, in Van Allen v. Railroad Co., 144 N. Y. 179, 38 N. E. 997, says that:

“No principle is better established or more frequently asserted than that, when a court of equity has once acquired jurisdiction over a cause for any purpose, it way retain the cause for all purposes, and proceed to final determination of all matters at issue.”

The court having acquired jurisdiction of this case, it had the power to offset one judgment against the other, and to grant such further relief as the nature of the case demanded.

It is also claimed by the learned counsel for the defendant that the advances referred to in the complaint must be deemed to have been allowed in the surrogate’s court, and, if not allowed, that the plaintiffs should have taken an appeal from his decision, for the season that the surrogate had power, under the statute, upon the final settlement of the administrator’s accounts to credit him for advances made to the defendant for her maintenance and support, and therefore the .proceedings before the surrogate are a bar to this action. The evidence and findings of fact by the learned referee will not, in my opinion, warrant such a contention. There can be no question but what surrogates have authority, under the statute, to settle the accounts of executors and administrators, and to adjust all matters relating to the affairs of deceased persons. This authority naturally carries with it the power to determine all questions concerning any claim, legacy, or distributive share, and to whom the same shall be paid; and, where allowances in money have been made •by the executor or administrator for maintenance, surrogates undoubtedly have power, in the furtherance of justice, to try and determine those questions, and to allow advances from the distributive shares of the parties to whom the advances have been made. Hyland v. Baxter, 98 N. Y. 615; In re Hood, 90 N. Y. 512. But the difficulty in applying the above rule to this case is that the advances consisted mostly of articles of merchandise purchased by Enos Gf. Laney for the defendant, who contended upon the accounting that she never received them, and she also disputed their value, which raised a collateral issue that was no part of the surrogate’s duty to hear, try, and determine. The courts have uniformly held that, where proceedings are instituted by a creditor to compel the payment of a debt, arid the debt is disputed, the surrogate has no power to try and adjudicate that question, or to set off one judgment against another. Riggs v. Cragg, 89 N. Y. 491; Bevan v. Cooper, 72 N. Y. 327. We have therefore reached the conclusion that the surrogate very properly held that he could not entertain and pass upon the disputed items contained in the account of Enos G-. Laney for advances to the defendant. The plaintiffs, therefore, were not estopped from bringing this action for an accounting and an offset of judgments. The judgment in the first action was conclusive upon the questions of loans, payments, and advances to the defendant, and could not be reopened and tried in this action.

The judgment appealed from should be affirmed, with costs. All concur.  