
    In the Matter of the Application of Loretta C. Noel, as Administratrix c. t. a. of William E. Noel, Deceased, for the Removal of the Action of Terence Murphy as Plaintiff and against Loretta C. Noel as Defendant from the City Court of the City of New York, County of New York, to the Surrogate’s Court of the County of Queens. Terence Murphy, Appellant; Loretta C. Noel, Respondent.
   Order of the Surrogate’s Court of Queens county, granting the motion of Loretta C. Noel, as administratrix c. t. a., to transfer to that court an action pending in the City Court of the City of New York, New York County, reversed on the law, with ten dollars costs and disbursements, payable out of the estate, and motion denied, with ten dollars costs. The motion was granted pursuant to subdivision 9 of section 40 of the Surrogate’s Court Act, which provides, in part, that the surrogate or Surrogate’s Court shall have the power “ To transfer for trial in the Surrogate’s Court of the counties of New York, Kings, Queens, Bronx, Richmond and Westchester any action at law now pending or which may hereafter be brought in any court, other than the Supreme Court, in which the representative of an estate is a party or the trial and determination of which is necessary or appropriate to the completion of the administration of an estate pending in such Surrogate’s Court.” It is unnecessary to pass upon the validity of this statute. Suffice to say respondent does not come within its provisions. Respondent, as administratrix, is not a party to the City Court action. In that action appellant, who is a holder in due course of a promissory note made by respondent personally, is suing her individually. The surrogate was without power to make the order. Lazansky, P. J., Young, Hagarty, Davis and Johnston, JJ., concur.  