
    Elwood Clare Allison, Respondent, v. Eagle Insurance Company (of London, England), Sometimes Known as, and Acting under the Name of, Eagle Life Insurance Company, Appellant, Impleaded with Frank R. Tobey and The Philadelphia Trust, Safe Deposit and Insurance Company, as Surviving Executors and Trustees under the Last Will and Testament of William Clare Allison, Deceased, Defendants.
    First Department,
    April 7, 1911.
    Injunction—suit to restrain proceedings in foreign court — conflict of laws — comity.
    The courts of this State will not entertain a suit "brought by a legatee to ■ restrain the assignee of a portion, of the legacy from collecting the same, where the testator resided in a foreign State where the will was probated, if a proceeding for the settlement of the estate is pending in the foreign probate court, and every question- sought to be litigated can be determined in that proceeding. .
    It is only in extreme and extraordinary eases that the court will break over the rule of comity Which forbids the granting of an injunction to stay proceedings which have been commenced in a foreign court of competent jurisdiction.
    Appeal by the defendant, the Eagle Insurance Company, from an order of the Supreme Court, made at the Mew York Special Term, and' entered in the office of the clerk of the| county of Mew York on the 6th day of March, 1911, granting an injunction pendente lite.
    
    
      Henry W. Taft, for the appellant.
    
      Edward S. Schwartz, for the respondent. ,
   McLaughlin, J.:

William Clare Allison," the grandfather of this plaintiff, died on the 30th of November, 1891, leaving a last will and testament, which was admitted- to probate in the Orphan’s Court of Philadelphia county, in the State of Pennsylvania. By the will the plaintiff was given a legacy of $30,000, contingent upon his survival of the period of distribution, which was fixed after the attainment of full age of the testator’s youngest living grandchild, and in the discretion of his executors and trustees not later than some time in the year 1911. If the plaintiff were not then living, the legacy was bequeathed to his children and their issue, if any were deceased. On the 16th of June, 1903, the plaintiff assigned to the appellant, a foreign corporation organized and existing under" the laws of Great Britain, $20,500 of this legacy. The assignment was drawn in the State, of New York, but delivered to the appellant in London, England, on or about July 1, 1903. The testator, at the time of his death, was a resident of the State of Pennsylvania, as were also the executors and trustees named in his will, and the fund or property given in trust then and now. is in that State. In December, 1910, the executors and trustees proceeded to settle the estate, and for that purpose filed then-accounts in the Orphan’s Court of Philadelphia in the State of Pennsylvania. The appellant and respondent both had notice of such proceeding and appeared therein, by their' respective counsel —this plaintiff objecting to the payment of the legacy referred to, or any part of it, to the insurance company. Before the objection had been passed upon, the proceeding 'for the settlement of the estate was, at respondent’s request, adjourned, and pending the adjournment this action was brought to procure a judgment, among other things, declaring the assignment null and void, and enjoining the executors and trustees from paying to the insurance company, and it from collecting, the legacy or any part of it, or talking any action or proceeding whatsoever towards enforcing or seeking to enforce payment of the same. • After the summons and complaint had been, served upon the insurance. company the plaintiff, upon such papers and an affidavit, applied, by an order to show cause,- for an injunction pendente lite enjoining and restraining the insurance company from taking any action whatever —^ except in this, action — looking towards the payment to itself of such legacy or from accepting or receiving the same from the executors or trustees, and also from, assigning or transferring the assignment referred to. . The application was' granted and the insurance company appeals from the order.

As already stated, the testator’s 'will was admitted to probate in the State of Pennsylvania and letters testamentary issued to the executprs and trustees by the Orphan’s Court of that State, which had jurisdiction of the - subject-matter. The executors and trustees, reside in that State, the fund is there located, and under the. Statute they are required to account to and receive their discharge from that court. The proceeding looking to the final settlement of the estate was, therefore, properly instituted in the State of Pennsylvania, and every question sought to be litigated in this action can be determined in the proceeding now pending in that State. That proceeding was commenced before this action, and there is no reason suggested why this' Court should exercise the power which it possesses to restrain the insurance company from having its rights ' there determined. It is only in extreme or extraordinary cases that this court will exercise' such power or “ break - over the rule of comity, and of policy, which forbids the granting of an injunction' to stay the proceedings in a suit, which has already been commenced, in a. court of competent jurisdiction in a sister State.” (Burgess v. Smith, 2 Barb. Ch. 276; Mead v. Merritt, 2 Paige, 402.)

. The question presented in Williams v. Ayrault (31 Barb. 364) is ■ somewhat similar to the one here presented. There, among other relief, an injunction was sought in an action to cancel an alleged usurious mortgage and to prevent the holder from prosecuting- an action for its foreclosure in the State of Ohio where the land covered by the mortgage was -situate. The mortgage was delivered in the State of New York, where one or both of the parties resided. The complaint was dismissed at the trial; on appeal the judgment was reversed, but, in the opinion—which was delivered by Johnson, J.—he took, occasion to say, referring to the injunction asked, that “.It was scarcely denied by the plaintiff’s counsel upon the argument that this action, so far as it sought to enjoin and restrain the defendant Ayrault from prosecuting his action, commenced and pending in the State of Ohio, could not be maintained. This may now; I think, be regarded as the settled rule in this country, whatever may be the rule in England.”

In Savage v. Allen (54 N. Y. 458) the rule is set forth as-follows: “The proposition that a separate action may, under our present system, be maintained to restrain by injunction the proceedings in another suit, in the same or in another court, between the same parties, where the relief sought in the later suit may be obtained by a proper defense to the former one, has long since been exploded, or if not, should -be without delay.” (See, also, Pond v. Harwood, 139 N. Y. 111; Griffith v. Dodgson, 103 App. Div. 542; Edgell v. Clarke, 19 id. 199.)

It may be that it would be more convenient and less expensive for the plaintiff to litigate the validity of the assignment in this action than to do so in the proceeding pending in the Orphan’s Court of Philadelphia, but if so that is not a sufficient •reason why the insurance company should be enjoined from having its rights determined in that proceeding, if that can be done before this action can be tried.

It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to continue the injunction pendente lite denied, with ten dollars costs.

Ingraham, P. J., Scott, Miller and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  