
    In the Matter of the Final Judicial Settlement of the Account of Proceedings of Henry O. Smith, as Executor, etc., of Phœbe De Saxe, Deceased, Appellant. Joseph D. Hart, Respondent.
    First Department,
    June 21, 1907.
    Executors and administrators — when Supreme Court will not entertain accounting hy executor — section 3739 of the Code of Civil Procedure governing proof of payment by executors applicable to actions in Supreme Court.
    Although the Supreme Court and the Surrogate’s Court have concurrent jurisdiction to entertain an accounting by an executor, the Supreme Court will not act when complete relief canvbe obtained in the Surrogate’s'Court.
    To obtain' an accounting in the Supreme Court, an executor must set forth special facts and circumstances in his complaint showing that complete justice cannot be had before the surrogate. Such special facts are not shown by an allegation that by reason of the stringent rules of evidence in the Surrogate’s Court under section 2729 of the Code of Civil Procedure, governing the admis-sion of evidence as to payments where no vouchers can be produced, he would be finable to testify to payments and introduce all his evidence thereof, thereby working great hardship and injustice. The provisions of said section are applicable to accountings in the Supreme Court, as well as to accountings in . the Surrogate’s Court.
    Appeal by Henry O. Smith, as executor, etc., of Pliosbe De Saxe,, deceased, from an order of tire Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of April, 1907, granting the respondent’s motion to vacate a prior order for the settlement of the executor’s account.
    
      Olivar C. Carpenter, for the appellant.
   McLaughlin, J.:

The executor under the last will and testament of Phoebe' Dé Saxe applied to and obtained from the Special Term'of this court an order directing all ¡versons interested in the. estate, either as legatees, creditors or otherwise, to appear before one of the justices of this court sitting iú Special Term, at a time and -place stated, to attend a final judicial settlement of his accounts as executor. Thereafter a' residuary legatee ' upon notice,; moved upon petition and an - affidavit that the order be vacated. The motion was granted and the executor appeals.

There is no doubt, that the equitable branch of the Supreme . Court possesses jurisdiction concurrent with’ the Surrogate’s Court to entertain an action for an accounting by an executor. (Haddow v. Lundy, 59 N. Y. 320.) The statute, however, gives full power to Surrogates’ Courts to settle the accounts of executors and administrators and distribute the estate among the persons entitled to receive the sanie, and that is the appropriate tribunal for the settlement of such .accounts'.- (Chipman v. Montgomery, 63 N. Y. 221.) The’ rulé seems to be well settled "that where- complete relief can1 be , obtained in the Surrogate’s Court, the Supreme Court will refuse to exercise its equitable powers to- entertain, an action for an accounting • (Wager v. Wager, 89 N. Y. 161; Anderson v. Anderson, 112 id. 104); in other words, it'-will decline- to take jurisdiction of ’ an action for an accounting by the representatives of -the estate of a deceased person unless special facts and circumstances are alleged showing that the case is one requiring relief of such a nature that the Surrogate’s Court is not competent' to- grant it, or some reason assigned or" facts stated" to show that complete justice cannot be", done in "that court. (Sanders v. Soutter, 126 N. Y. 193; Citizens' Central National Bank v. Toplitz, 113 App. Div. 73.) And when it does take jurisdiction it will only -be in an action in which- the special -facts and- circumstances are set forth in the complaint. Here, the application was by petition and tliore were no special facts. and circumstances alleged; on the contrary, the only facts stated by reason of which a settlement - is sought in the Supreme Court is that the petitioner is advised- by li.is attorney that if he accounts in the Surrogate’s Court “ that owing to the stringent rules of evidence which are made applicable to the said court- by section 2729 of "the Code of Civil Procedure, governing the admission of evidence as to payments by executors, where ho vouchers can be produced, he would be unable to testify as to such, a payment or to’ introduce all his evidence tending to prove the said payment as alleged in -the said schedule and thereby working great injustice and hardship upon your petitioner.” Obviously, this -is not a reason why the court .should, take jurisdiction, and if it -did, the' executor would have to produce .the same kind of proof as to payments that he would in the Surrogate’s Court. By the provision of section 2729 of the Code of Civil Procedure, such items of expenditures may only be allowed without a voucher when the item does not exceed $20, and the whole amount of such items so allowed shall not exceed in the aggregate $500. This provision of the Code is applicable to accountings of executors or administrators in the Supreme Court. (Matter of Nutting, 74 App. Div. 468.) The purpose'of this statute is to protect estates by providing a rigid rule of evidence as to payments by executors or administrators. Its purpose cannot be weakened or destroyed by accounting in the Supreme Court instead of the Surrogate’s Court.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.-

Order affirmed, with ten dollars costs and disbursements.  