
    Mandeville J. Barker et al., as Executors, etc., Resp’ts, v. Mary K. Laney, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Equity—Jurisdiction.
    When a court of equity acquires 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.
    3. Pleadings—Set-offs.
    Where the executor sues the widow for an accounting and to set-off the amount of advances made to her against a decree for a portion of her distributive share, and recovers a personal judgment for the excess of such advances over the decree, and subsequently the surrogate’s court renders in favor of the widow another decree for the balance of her distributive share, the court can set-off the judgment against such second decree.
    
      8. Jurisdictions—Surrogate.
    Where proceedings are instituted by a creditor to compel the payment of a debt, and the debt is disputed, the surrogate has no power to try and adjudicate that question, or to set-off one judgment against another.
    4. Former adjudication—Subject-matter.
    In such case, the executor is not estopped from suing 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 a judgment, entered upon .the report of a referee, directing that a j udgment in favor of plaintiffs be set off against the decree in favor of defendant.
    
      Quincy Van Voorhis, for app’lt; Bacon, Briggs, Breckley & Bis-sell (Frederick W. Smith, of counsel), for resp’ts.
   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 Gr. Laney and the defendant were appointed by the surrogate of Monroe county administrators of his estate. It also appears that Enos Gf. Laney purchased and delivered to the defendant at various time 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 the 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 striken 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, trj, 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 dhtribdtive share in the estate, a specified sum of money. Thereaftei, and on or about March 5, 1890, the defendant procured a transcript of said decree to be filed, and an execution to be issued thereon and levied upon the property of Enos Gr. Laney to satisfy said judgment. Laney immediately brought an íitition to cancel the judgment on the ground that it had been paid by the advance made as aforesaid, and a slced 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. Gr. 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 teat 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 brought for an accounting between Enos O, Laney and the defendant for moneys loaned, paid, and advanced by him to her, and for judgment that the moneys so .¡caned, paid out, and advanced be applied and allowed as a set-:ff 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 tie-plaintiffs failed upon the trial t o 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 plaintiff’s 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 aslced for had teen determined in the first action, yet that fact did not deprive tie 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 U try that question and such other issues as arose upon the trial that were "ncidentally 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, 33 St. Rep. 673. 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 ás a cause of action survives upon the facts alleged. Lynch v. Railway Co., 129 N. Y. 274; 41 St. Rep. 541. Judge O’Brien in Van Allen v. Railroad Co., 144 N. Y. 179 ; 63 St. Rep. 82, 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 may retain the cause for all purposes, and proceed to final determination of all matters at issue.” The court having acquired jurisdiction in 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 reason 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 allowance 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 ad-' vanees 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 id. 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, and 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 id. 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 Gf. 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 question 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.  