
    In the Matter of the Judicial Settlement of the Accounts of William J. Farrell, as Executor, etc., of Leocadie Farrell, Formerly Leocadie Llado, so Far as the Same Relates to the Account of Said Leocadie Farrell, as Executrix, etc., of Francisco Llado, Deceased. Francisco L. Farrell and Others, Appellants, v. William J. Farrell, as Executor, etc., Respondent.
    Second Department,
    April 24, 1908.
    Executor and administrator — accounting — jurisdiction of Supreme Court — stay of proceedings before surrogate.
    The Supreme Court will only entertain an action for an accounting by an executor where matters are involved of which the surrogate has no jurisdiction. When an action against the executor of a deceased executrix to compel him individually and as executor to account for rents and profits of real estate alleged to have been wrongfully sold by the deceased executrix is pending in the Supreme Court, and all matters of difference between the parties can be settled in that action, a subsequent proceeding of accounting brought by the executor in the Surrogate’s Court will -be stayed.
    Where two tribunals have equal jurisdiction the cause should be retained and disposed of in the forum where action is first brought.
    Appeal by Francisco L. Farrell and others from an order of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 31st day of October, 1907.
    
      Edward J. McGuire, for the appellants.
    
      T. Ellett Hodgskin [George W. Wingate with him on the brief], for the respondent.
   Miller, J.:

This is an appeal from an order vacating an order staying a proceeding for an accounting in the Surrogate’s Court pending the determination of an action in the Supreme Court.

Francisco Llado died in Kings county on August 28, 1884. By his will and the codicil thereto he disposed of his property, so far as material to the present inquiry, as follows, viz.: Certain real estate in Spain to his children; all of his other real estate and personal property to his wife, Leoeadie Liado. His wife was appointed executrix and alone qualified; his executors were given power to sell the Spanish real estate at either public or private sale in case they should deem it necessary for the support and education of his children, the executors to hold and invest the proceeds of such sales during the minority of said children and to pay the income and so much of the principal as might be necessary to the support and education of said children during their minority. Said Leoeadie Liado subsequently married the respondent, William J. Farrell, and died March 19, 1891, leaving a last will and testament appointing him her executor. On March 19, 1906, Louis Liado Farrell, one of the children of said Francisco and Leoeadie Liado, commenced an action in the Supreme Court, Hew York county, against said William J. Farrell individually and as executor and trustee under the last will and testament of Leoeadie Farrell and Francisco Liado Farrell and Adelaide Liado Farrell, the other children of Francisco and Leoeadie Liado. The complaint in that action sets forth three causes of action. The first two are based on claims against the said William J. Farrell and the estate of said Leoeadie Liado Farrell for rents received from said Spanish real estate and from the proceeds resulting from alleged wrongful sales thereof. For a third cause of action it is alleged, among other things, that a large amount of personal property and more than enough to pay the debts of said Francisco Liado was received by said Leoeadie Liado as his executrix, but that the defendant claims that said real estate was sold and the proceeds used to pay the debts of said Francisco Liado, and that no accounting has ever been had of the acts of said Leoeadie Liado Farrell as executrix aforesaid. The prayer for relief, among other things, demands an accounting of the acts of Leoeadie Liado Farrell as executrix. Subsequent to the commencement of the Supreme Court action said William J. Farrell as executor of the estate of Leoeadie Farrell, formerly Leoeadie Liado, filed an account of her proceedings as executrix of said Francisco Liado, and citations thereon were duly issued; annexed to that account is a statement that a part of said Spanish real estate was sold on mortgage foreclosure, that rents were collected from another part and that said Farrell holds the sum of $529,46 thereof as executor, etc. Thereupon a motion was made to stay the accounting in the Surrogate’s Court pending the determination of the Supreme Court action, which was granted, but subsequently the order appealed from was made vacating said stay, the complaint and answer in the Supreme Court action having meanwhile been served. The learned surrogate thought that the Supreme Court action involved only the determination of a claim against the estate of said Leocadie Liado Farrell, and that the action was not brought for an accounting of her proceedings as executrix. The answer in the Supreme Court action raises no question as to the propriety of the joinder of the different causes of action attempted to be alleged — if, indeed, such question could be successfully raised — which we do not suggest. The plaintiff in the Supreme Court action does pray for an accounting of the acts of Leocadie Liado Farrell as executrix, etc., and there are sufficient facts alleged to warrant that prayer. The parties to the accounting in Surrogate's Court are the same as in the Supreme Court action. While the purpose of the accounting demanded in the Supreme Court action is only incidental to the relief sought, it is evident that the proceeding in Surrogate’s Court was instituted solely for the purpose of determining the rights, if any, of said children of Francisco and Leocadie Liado on account of the acts of the latter relating to the Spanish real estate, and it is unnecessary now to determine whether the liability, if any was incurred, was against her individually or as executrix. While the Supreme Court will not entertain jurisdiction of an action for an accounting by *an executor if that alone is involved (Matter of Smith, 120 App. Div. 199), the Supreme Court ana Surrogate's Court have concurrent jurisdiction, and the Supreme Court will entertain jurisdiction if matters are involved of which the Surrogate’s Court does not have jurisdiction, and the rule is that where two tribunals have equal jurisdiction the cause should he retained and disposed of in the forum where judicial action is first sought. (Ludwig v. Bungart 48 App. Div. 613, and cases cited.) It appears to us clear that the issues in the Supreme Court action have been so joined that all the matters of difference between the parties can be settled in that action, while the Surrogate’s Court may only pass upon matters which may be raised on the accounting. Under these circumstances it was proper to stay the proceeding in Surrogate’s Court, and the order appealed from should be reversed and the motion denied.

Woodward, Hooker, Gaynor and Rich, JJ., concurred.

Order of the Surrogate’s Court of Kings county reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  