
    (120 App. Div. 199)
    In re SMITH.
    (Supreme Court, Appellate Division, First Department.
    June 21, 1907.)
    ' 1. Executors—Action fob Accounting—Courts—Jurisdiction.
    Where complete relief can be obtained in the Surrogate’s Court, the Supreme Court will refuse to exercise its equitable powers to entertain an action for an accounting by an executor.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 22, Executors and, Administrators, §§ 2000-2011.]
    
      2. Same.
    The Supreme Court will not entertain an action for an accounting by an executor, where the only facts stated, in the petition were that petitioner was advised by his attorneys that if he accounted in the Surrogate’s Court, he would, owing to stringent rules of evidence made applicable to said court by Code Civ. Proc. § 2729, governing the admission of evidence as to payments by executors where no vouchers can be produced, be unable to testify as to such a payment, or to introduce all his evidence tending to prove such payment as alleged in the schedule, thereby working great injustice and hardship upon petitioner; such provision of the Code being applicable to accountings of executors and administrators in the Supreme Court.
    Appeal from Special Term.
    In the matter of the final judicial settlement of the accounts of Henry G. Smith, as executor, etc. From an order vacating an order directing parties interested to attend a judicial settlement of his accounts, the executor appeals. Affirmed. ■
    Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, CLARKE, and SCÓTT, JJ.
    Oliver C. Carpenter, for appellant.
   McLAUGHLIN, J.

The executor under the last will and testament of Phoebe De Saxe applied to and' obtained from the Special Term of this court an order directing all persons interested in the estate, either as legatees, creditors, or otherwise, to appear before one of the justices of this court sitting in 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 uponl 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 same, and that is the appropriate tribunal for the settlement of such accotints. Chipman v. Montgomery, 63 N. Y. 221. The rule seems to be well settled that, where complete relief can 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. Wagner, 89 N. Y. 161; Anderson v. Anderson, 112 N. Y. 104, 19 N. E. 427, 2 L. R. A. 175. _ 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, 27 N. E. 263; Citizens’ Central National Bank of N. Y. v. Toplitz, 113 App. Div. 73, 98 N. Y. Supp. 826. 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 there 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 his attorney that, if lie accounts in the Surrogate’s Court, “owing to the stringent rules of evidence which are made applicable to the said court by section 2729 o'f the Code of Civil Procedure, governing the admission of evidence as to payments by executors, where no 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, 77 N. Y. Supp. 696. 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 $10 costs and disbursements. All concur.  