
    John A. Rutherfurd, as Executor, etc., of Richard Baring Gould, Deceased, Appellant, v. Louisa Myers and Others, Respondents.
    
      Stay of an accounting by an executor and trustee in the Surrogate’s Court — the Surrogate’s Court, and not the Supreme Court, may grant it —poioer of the surrogate to decide whether an omrpatyment of income should be deducted from income subsequently accruing.
    
    The Supreme Court has no power to stay a proceeding for an accounting by an executor and trustee, which is pending in the Surrogate’s Court, until the determination of an action for an- accounting brought by the executor and trustee in the Supreme Court; the power to grant such a stay is vested in the Surrogate’s Court.
    
      
      It seems, that the surrogate has power upon the accounting to determine whether the trustee had a right to deduct, from a beneficiary’s share of the income of the trust fund subsequently accruing, an overpayment previously made to the beneficiary by mistake; and that the trustee is not obliged to bring an action in equity in order to have that question determined.
    Appeal by the plaintiff, John A. Rutherfurd, as executor, etc., of Richard Baring Gould, deceased, from an order of the Supreme Court, made at the Mew York Special Term, bearing date the 3d day of January, 1900, and entered in the office of the clerk of the county of Mew York, denying the plaintiff’s motion for a stay of the proceedings for an accounting as to the estate of Alfred G. Myers, deceased, pending in the Surrogate’s Court of the county of Mew York.
    
      F. R. Minrath, for the appellant.
    
      George M. Thomson, for the respondents.
   Ingraham, J.;

The action was commenced to settle the accounts of the executors and trustees under the last will and testament of Alfred G. Myers, deceased, and to have charged against and allowed, out of the income of the trust estate to which the said Louisa Myers became entitled, a certain overpayment made to her, or her committee, she having been declared a lunatic. The complaint then asks that, pending the determination of this action, the proceeding .for an accounting now pending in the Surrogate’s Court by John A. Rutherfurd, as executor and trustee under the last will and testament of Alfred G. Myers, deceased, be stayed. This complaint having been served, the plaintiff made a motion for a stay of the accounting as to the estate of Alfred G. Myers, now pending in the Surrogate’s Court of the County of Mew York.” That motion was denied, and from the order denying that motion this appeal is taken.

We do not think that the Supreme Court had authority to stay the proceedings on an accounting in the Surrogate’s Court. While this court has jurisdiction upon proper facts to enjoin the parties to an action or special proceedings in other courts from proceeding therewith, if a stay of proceedings is required, application must be made in the court in which the proceeding is pending. Mo injunction in this case was applied for. It does not appear that the provisions of the Code as to an injunction were complied with. Nor would the facts alleged justify the court in granting such an injunction. The proceeding for an accounting was properly commenced in the Surrogate’s Court by the executors and trustees of the estate. No fraud is alleged nor shown. The plaintiff alleges as a reason for this relief that the Surrogate’s Court lias no equitable powers which would enable it to award a set-off against the income that subsequently accrued to one of the beneficiaries who was overpaid through a mistake. Assuming that this would be so, that would not prevent the surrogate from proceeding with the accounting and determining the amount of the income which has been received by the executors and trustees, the amount for which they should be charged, and the amount of credits that they should be allowed, leaving the question of the set-off to be subsequently determined in this action. If, however, it should appear that the accounting could be more satisfactorily determined in this action, the surrogate lias ample power to stay the proceedings in his court until the final determination of this action, and if a proper case is made we have no doubt that he will properly exercise that discretion. There is nothing here, however, to show that the extraordinary interposition of the Supreme Court was necessary.

We do not see, however, why the surrogate cannot properly settle the accounts of the trustees in the accounting proceeding before him. The question is whether one of the beneficiaries has been paid all the interest or income from the property held in trust to which lie was entitled. The plaintiff alleges that in consequence of a mistake as to the interpretation of the will under which he has acted, this beneficiary was paid an amount in excess of that to which he was entitled. He lias claimed and exercised the right to deduct from the income accruing subsequent to the discovery of the mistake an amount sufficient to make good the overpayment; and whether or not the trustee had a right to deduct such subsequent accruing* income is the question which he seeks to settle in this action. But it would seem that that was simply a question of accounting which the Surrogate’s Court had ample jurisdiction to properly determine. This does not seem to depend upon any equitable doctrine of set-off, or other equitable principles which can be administered only in a court of equity, but would seem to be a question of account over which the surrogate has the same jurisdiction as has the Supreme Court. If, upon the determination of the accounting proceeding, it appeared that the plaintiff was denied any relief to which, upon equitable principles as administered in courts of equity, he was entitled, he could then apply to a court of equity for such relief; but at this stage of the proceeding there is nothing to prevent the Surrogate’s Court from proceeding with the accounting, or that would justify the interference of the Supreme Court.

We think the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  