
    (19 App. Div. 338.)
    STOERZER v. NOLAN et al.
    (Supreme Court, Appellate Division, First Department.
    July 2, 1897.)
    Accounting by Assignee—Procedure.
    While the supreme court has jurisdiction to entertain an action for an accounting by an assignee for the benefit of creditors, as well as a proceeding by petition and citation for the same purpose, it has the right to require the remedy to be pursued in either form, in its discretion; and, except in cases where special circumstances require it, the court will not entertain an action for the purpose.
    Appeal from special term.
    Action by Henry A. Stoerzer against Michael W. Nolan and others. From an order denying plaintiff’s motion for* an interlocutory order and judgment in an action for an accounting by a creditor of the estate of Durland’s Biding Academy Company, plaintiff appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
    Percy L. Klock, for appellant.
   PER CURIAM.

The action was begun, as appears from the complaint, by a creditor of the company, more than a year after the assignment. After the service of the summons and complaint, the assignor defaulted in answering; but upon the admission by the assignee in his answer of the claim of the plaintiff an application was made in due-time by the plaintiff, on consent, for an interlocutory order and judgment directing an accounting, which application was denied, and from, the order entered thereon this appeal is taken.

The supreme court has ample jurisdiction to entertain an action for an accounting by an assignee for the benefit of creditors, and it is also well settled that by chapter 380 of the Laws of 1885 there was conferred upon the supreme court and its justices the same jurisdiction formerly held by county courts and county judges under the general assignment act (Laws 1877, c. 466). Mills v. Husson, 140 N. Y. 99, 35 N. E. 422. While, therefore, the court has jurisdiction to proceed either in an action or by petition and citation to compel an assignee to account, we-do not think it follows that a creditor can compel the court to proceed in the action rather than by petition and citation. In other' words, the creditor has no right to elect which of the two remedies he should pursue, but it is a subject over which the court has control, and which it can regulate by rules, and by requiring which of the two remedies-shall be followed. The right of the court thus to require the remedy to be pursued in one form rather than in another is in many respects analogous to the same right exercised by the court in refusing to-entertain actions for an accounting against executors, and remitting parties to their remedy for similar relief in the surrogate’s court. That the supreme court has the power to entertain actions for an accounting against executors is undoubted; but its refusal to exercise-such jurisdiction, unless special facts and circumstances show that complete justice cannot be done in a surrogate’s court, is upheld by many cases. Blake v. Barnes (Sup.) 18 N. Y. Supp. 471; Hard v. Ashley, 117 N. Y. 606, 23 N. E. 177; Chipman v. Montgomery, 63 N. Y. 221. Prior to 1885 it was the usual practice to have accountings by ■ assignees brought in the county courts, and this notwithstanding the-fact that the supreme court had jurisdiction to entertain an action for such an accounting, which it was always inclined to exercise when, in a given case, no proceedings had been commenced in the county courts. Since 1885, as stated, this court having its original power to-entertain such an action, and also having conferred upon it the same-power as county courts, it was entirely competent to make such rules. and regulations with respect to the remedy to be followed as would, secure complete justice. To that end such rules have been adopted, and while there may be, upon special facts and circumstances appearing,—which, however, are not here present,—exceptional instances where it will entertain an action for an accounting, it has formulated. a procedure which, by petition and citation, follows the method formerly practiced in the county courts, and which experience has shown to be the most efficient for securing notice to creditors, and for avoiding the preferences and irregularities that may be suffered by the general creditors if any particular one is permitted to have the control and direction of an accounting in which all should have equal rights. While the appellant is right, therefore, in his contention that he has two remedies, we think his error is in assuming that the election is with him, and that the court is powerless to regulate which remedy h,e shall pursue; and that upon the facts here appearing the trial judge was right in refusing to make the order and judgment applied for,- and in remitting the plaintiff to his remedy by petition and citation, which is the procedure required by the rules.

The order, therefore, should be affirmed, but, as there appears to be no respondent, it should be without costs.  