
    In the Matter of the Judicial Settlement of the Account of Proceedings of Sam H. Drellich, as Administrator, etc., of Fanny Drellich, Deceased. Leo Drellich and Natalie Drohlich, Petitioners, Appellants; Sam H. Drellich, as Administrator, etc., of Fanny Drellich, Deceased, Respondent.
    First Department,
    June 17, 1938.
    
      Herman Katz, for the appellants.
    
      Morris F. Wiesenthal, for the respondent.
   Per Curiam.

Under the account of the administrator as filed the question of the ownership of the real property 151-153 Summit place, borough of Bronx, is not within the jurisdiction of the surrogate. The controversy concerning the ownership of that property is entirely between the administrator individually and the next of kin of the deceased. If, however, it is sought to surcharge the administrator by objections filed to the account for rents received from that property, or if it shall appear that the rights of creditors of the deceased are involved, the surrogate may then entertain jurisdiction to determine the ownership of the real property as an incident of his power to administer matters relating to the affairs of decedents.” (Surr. Ct. Act, § 40.)

The order, so far as appealed from, should be reversed to the extent herein indicated, and otherwise affirmed.

Present — Martin, P. J., OMalley, Townley, Glennon and Untermyer, JJ.; Glennon, J., dissents and votes for affirmance.

Order, so far as appealed from, reversed to the extent indicated in the opinion, and otherwise affirmed. Settle order on notice.  