
    (68 Hun, 406.)
    In re STILWELL’S ESTATE.
    (Supreme Court, General Term, First Department.
    April 14, 1893.)
    1. Surrogate’s Jurisdiction—Pendency op Action in Another Court.
    A mortgage executed by a deceased testator was foreclosed pending the settlement of the estate in the surrogate’s court, and the judgment of foreclosure directed the surplus to be paid into the surrogate’s court for distribution. Held, that an action of ejectment, brought for the recovery of the land during the pendency of the foreclosure suit by one of the heirs of testator against the devisees in the will, would not prevent the surrogate from proceeding with the distribution of the fund, though it be conceded that such surplus was substituted for" the land, since, in a case_ of concurrent remedies, a court or judge called on to determine a question need not delay and await the result of an action pending in another court, in the absence of good reason to the contrary.
    2. Same—Distribution of Surplus on Foreclosure Sale—Supreme Court.
    Code Civil Proc. § 2798, requiring payment to the surrogate of surplus moneys arising from the sale of a decedent’s lands by virtue of any mortgage or other lien given by or obtained against such decedent in bis lifetime, does not apply to a sale made pursuant to a judgment rendered by the supreme court; and where, after the death of an owner of real property, an action is commenced to foreclose a mortgage thereon, and the property is sold pursuant to the judgment in the action, the surplus moneys arising on the sale may be distributed under the direction of the supreme court.
    8. Same—Distribution by Surrogate.
    While the supreme court has the power to itself distribute such surplus, it is not bound in all cases to exercise such power, and on a proper showing it may direct, by its order or judgment, the deposit of such surplus in the surrogate’s court for distribution.
    4. Same—Estoppel to Object to Surrogate’s Jurisdiction.
    A party to the foreclosure suit, who has failed to object to the judgment directing the deposit of the surplus in the surrogate’s court, and its distribution by such court, and who has taken no appeal from such judgment, cannot for the first time in the proceedings in the surrogate’s court question the power of the surrogate to make such distribution, or insist that he is without authority to pass on the priority or conflict of claims between the heirs and the devisees.
    Appeal from surrogate’s court, New York county.
    Petition by Hannah M. Stilwell, a devisee under the will of Elizabeth Stilwell, deceased, for distribution of the proceeds of the real estate of such decedent. Frances Dixon, sole heir of said deceased, appeared, and objected to the proceedings. Said Frances Dixon appeals (1) from a decree of the surrogate decreeing distribution of surplus arising from sale under foreclosure of real estate owned by said decedent, and (2) from an order in effect denying her application for a stay of proceedings pending the determination of an action of ejectment in the supreme court, begun by her against devisees under the will and others, to recover possession, among other real estate, of the premises so sold.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    Agar, Ely & Fulton, (John Gr. Agar and Abram F. Servin, of counsel,) for appellant.
    Merrill & Rogers, (Payson Merrill, of counsel,) for respondent.'
   O’BRIEN, J.

Elizabeth A. Stilwell died in 1890, seised of premises No. 214 West Thirty-Fourth street in the city of New York. Her will was subsequently, in 1891, admitted to probate in this county. This property, at the time of Mrs. Stilwell’s death, was subject to a mortgage. An action to foreclose this mortgage was commenced in July, 1891, and judgment therein entered in November, 1891, and thereunder the premises were sold, and the surplus money arising therefrom was paid into the surrogate’s court, pursuant to section 2798 of the Code. An application was then made by one of the devisees of Mrs. Stilwell, in which proceeding the other devisees and the appellant, Frances Dixon, who claims to be a daughter of Mrs. Stilwell, were parties, to distribute this surplus among the parties entitled thereto. In answer to this application Mrs. Dixon showed that on the 14th of September, 1891, she had •commenced an action of ejectment to recover possession of the mortgaged premises, which was then, and still is, pending. Though at first inclined to a different view, the surrogate; on further consideration, decided that the pendency of the ejectment action was no obstacle to the proceeding in the surrogate’s court, and that that •court had jurisdiction to try and decide the issues involved in the proceeding, and directed the parties claiming the fund to present their proof before him. Thereupon Mrs. Dixon filed an answer, hut on the hearing presented no proof. The conclusion reached by the surrogate, as shown in his opinion, is based upon three propositions: First, that appellant’s rights to the land were cut off from the land by the sale in foreclosure, and transferred to the surplus, and could only be asserted in a proceeding for its distribution; second, that the provisions of the Code imperatively require that the surplus moneys be paid into the surrogate’s court; third, that these provisions, from the nature of the case, necessitate the jurisdiction hy him commensurate with the purpose of this proceeding.

It appears that the appellant was a party to the foreclosure suit, and that by the judgment as amended the surplus was directed to be paid into the surrogate’s court. There is nothing to show that any objection was made by the appellant to this provision of the judgment, and we fail to see, therefore, how many of the questions now sought to be raised can be presented, or how they could he presented except by an appeal from the judgment. If, however, we briefly consider the propositions so ably presented by appellant, the conclusion will be similar to that reached by the learned surrogate. That the claim of the appellant is subordinate to the lien of the mortgage, and by the sale was cut off and transferred to the surplus, is evident; and, even though a claim or right originally existing against land might be litigated in an independent action, and the party not be confined to the surplus proceeding,— which is seemingly contrary to the view of the cases referred to by the surrogate,—yet we think it clear that subsequent to the sale of the property an independent action in ejectment would not lie. The object of such an action is to put the plaintiff in possession of the land, and, where the object sought to be accomplished no longer exists, it would be requiring of the court to litigate a purely "abstract question; and, though the court should take the appellant’s view that the surplus money had been substituted for the land, we cannot imagine what judgment in an action of ejectment could be rendered which would affect such surplus. What was said in People v. Rollins, 33 Hun, 48, headnote, is here applicable:

“Where a court has acquired jurisdiction over a subject-matter and the parties in interest in the course of the exercise of its right of authority, it is its duty to proceed with the hearing until a final determination is made of the matters presented for its consideration and under its Control, unless it be prevented from so doing by an injunction or some other legal process rendering such a proceeding impracticable. A mere objection, or an objection followed by an ineffectual action in another court, will not justify a delay or a refusal to exercise its own rightful authority ”

We regard it as clear that, if the surrogate had jurisdiction of the subject-matter and the parties, he was not obliged to delay exercising such jurisdiction because similar questions were pending' and under consideration in another forum. In other words, where there are concurrent remedies, which are resorted to by different parties, the judge or court called upon to determine questions then before them, in the absence of any good reason for not exercising jurisdiction, should not delay and await the result of an action or proceeding in another court. Of course, there are instances where the facts would warrant a court in waiting for the conclusion of an action or proceeding in another court, but the present is not one of those, and for the reasons which we have already pointed out. We are of opinion, therefore, .that upon the facts appearing before the surrogate he was justified in proceeding, unless he was without jurisdiction over the subject-matter and the parties.

We are thus brought to a consideration of one of the most strenuous grounds relied upon by appellant, who takes this very position, claiming that sections 2797 and 2798 of the Code of Civil Procedure, if construed as a direction to pay all surplus moneys, after an action of foreclosure in the supreme court, into the surrogate’s court, are inoperative and void, because unconstitutional. The further position is taken that, thoúgh these sections should be held not to be unconstitutional, they do not authorize direct payment into the surrogate’s court of the surplus arising from a sale in a foreclosure suit. If the language of these sections should be held to be mandatory, requiring and directing the payment into the surrogate’s court of the surplus arising from a sale in a foreclosure suit brought in the supreme court, and thus depriving the supreme court of part of the jurisdiction conferred upon it in all cases of law and equity by the constitution, we should be inclined to hold that so much of the sections as tends to such a result would be unconstitutional. It has been held, however, by this court, construing chapter 658 of the Laws of 1867, as afterwards amended by chapter 170 of the Laws of 1870, which law is embodied in section 2798 of the Code, that it did not apply to sales made pursuant to judgments. Bank v. Sharer, 25 Hun, 409. That case is authority for the view that where, after the death of the owner of real property, an action is commenced to forclose a mortgage thereupon, and the property is sold pursuant to the judgment in the action, the surplus moneys arising upon the sale might be distributed under the direction of the court. While, therefore, the supreme court may proceed to distribute the surplus, and is not prevented from distributing the same by force of any seeming direction requiring that it should be deposited in the surrogate’s court, it does not from this follow that, because the supreme court has jurisdiction, it must itself proceed and exercise it. Many instances might be suggested and thought of wherein, there being no dispute or questions to be passed upon, it might be entirely proper to relegate the subject of distribution to the surrogate’s court, or to another jurisdiction. And it would seemingly follow that the power thus conferred by the supreme court upon either its own officer or referee or subordinate tribunal to distribute would include the necessary power to pass upon all questions essential to a just and equitable distribution of such surplus. However this may be, we do not think it can be seriously contended" that the supreme court in every case would be bound itself to proceed and distribute, or that it would have no right, upon proper facts appearing, and where it would be for the advantage of all interested in the fund, to direct by its order or judgment the deposit of such surplus in the surrogate’s court, and leave to that court its distribution. That, in effect, is what was here done. The judgment of this court, made in an action in which this very appellant was a party, as already stated, directed the deposit in the surrogate’s court; and, if there was any good reason why this provision of the judgment should not have been made, the time to object would have been when the judgment was rendered, and, if aggrieved thereby, an appeal would supply a remedy to review the merits of such a grievance. Where, however, no objection was made, and no appeal taken, and the fund has been deposited pursuant thereto in the surrogate’s court, it is too late, upon the proceedings before the surrogate, to make the point that, his authority and jurisdiction being limited, he cannot determine all the questions that will arise between the parties as to their' conflicting: claims to the fund. We think, therefore, that the appellant is not in a position to question the power of the surrogate, or to now insist that he is without authority to pass upon the priority of conflicting claims between heir and devisee to the fund, as distinguished from their validity. Were the question, however, before us, we should be inclined to adopt the conclusion reached by the learned surrogate,—that, the subject having been referred to him,, this by force of the judgment and the provisions of the Code would necessitate the possession by the surrogate’s court of a commensurate power and jurisdiction. This conclusion is equally fatal to appellant’s further contention that, as her answer presented questions involving the title to real estate, or the validity of a will of real estate, the surrogate had no jurisdiction to decide upon such issues. Our opinion, therefore, upon all the questions raised is that the surrogate was right in his conclusions, and that both the order and the decree should be affirmed, with costs. All concur. 
      
       These sections are as follows:
      “Sec. 2797. The commencement or pendency of an action or special proceeding, having for its object the sale, either absolutely or contingently, of property liable to be disposed of as prescribed in this title, or the foreclosure by advertisement, of a: mortgage thereupon, or any proceeding to sell such property, taken pursuant to a judgment or by virtue of an execution, does not affect any of the proceedings taken as prescribed by this title, unless the surrogate so directs. After making a decree directing a mortgage, lease, or sale, the surrogate may, and, in a proper case, he must, stay the order to execute the decree with respect to the property affected by the action or special proceeding, or by the proceedings then pending, until the determination thereof, or the further order of the surrogate with respect thereto, if, in the course thereof, a sale of any of the property has been made before malting the decree in the surrogate’s court, the decree must provide for the application of the surplus proceeds belonging to • the decedent’s estate. If such a sale is made afterwards, the directions contained in the decree, relating to the property sold, are deemed to relate to those proceeds.
      “Sec. 2798. Where real property, or an interest in real property, liable to be disposed of as prescribed in this title, is sold, in an action or a special proceeding specified in the last section, to satisfy a mortgage or other lien thereupon, which accrued during the decedent’s lifetime, the letters testamentary or letters of administration upon the decedent’s estate were, within four years before the sale, issued from a surrogate’s court of the state having jurisdiction to grant them, the surplus money must be paid into the surrogate’s court from which the letters issued. If the sale was made pursuant to the directions contained in a judgment or order, the surplus remaining after payment of all the liens upon the property, chargeable upon the proceeds, which existed at the time of the decedent’s death, must be so paid. If the sale was made in any other manner, the surplus exceeding the lien to satisfy which the property was sold, and the costs and expenses, must, within thirty days after the receipt of the money from which it accrues, be so paid over by the person receiving that money. The receipt of the surrogate or the clerk of the surrogate’s court or the county treasurer, as the case may be, is a sufficient discharge to the person paying the money.”
     