
    Louisa Fribourg, Plaintiff, v. Emigrant Industrial Savings Bank and Esther Robitscher, as Executrix of the Last Will and Testament of Frederick Robitscher, Deceased, Defendants.
    (Supreme Court, New York Special Term,
    December, 1914.)
    Pleading — allegations of — complaint in action of interpleader — affirmative defense set up in answer — demurrer — Code Civ. Pro , § 2472a.
    The complaint in an action of interpleader alleged that plaintiff was the assignee of a deposit of $1,334.05 made by a decedent in defendant bank, that it refused to pay plaintiff and that such deposit was claimed by the other defendant, the executrix of said decedent, who apparently had possession of decedent’s savings bank book. As an affirmative defense the answer of the executrix alleged that the true amount on deposit in said bank at decedent’s death was $1,360.73; that defendant became entitled thereto as executrix; that in her aecount of proceedings said deposit was set forth as part of the estate; that plaintiff was duly cited to attend said accounting which resulted in a decree settling and passing the account as filed and discharging the executrix from all liability for the assets accounted for, including said deposit, upon making the payments as directed by said decree which was entered on March 11,1914, prior to the commencement of this action, and that said deposits still remain in the custody of defendant bank. A counterclaim, after repeating the allegations of the affirmative defense, alleged that while plaintiff was a $3,000 legatee she was also his debtor to the extent of $2,900 which the decree entered on the accounting offset against her legacy. Held, that the surrogate in March, 1914, had jurisdiction under section 2472a of the Code of Civil Procedure to ascertain the title to plaintiff’s legacy or distributive share, to offset the debt due by plaintiff to the estate and to exercise all other power legal or equitable necessary to the complete disposition of the matter; and a demurrer to the affirmative defense and • counterclaim must be overruled.
    Demurrer to affirmative defense and counterclaim.
    Horwitz & Bosenstein, for plaintiff.
    Ferdinand E. M. Bullowa, for defendant Esther Bobitscher.
   Guy, J.

Demurrer to affirmative defense and counterclaim. Action of interpleader.

The complaint alleges that plaintiff is the assignee of (it not being stated whether by written or oral assignment or that she ever had custody of the savings bank hook) a deposit of $1,334.05 made by decedent in the Emigrant Industrial Savings Bank; that the hank refused to pay it to her; also that it is claimed by defendant, the decedent’s executrix (who apparently had his savings hank book).

The answer alleged that the true amount on deposit at decedent’s death was $1,360.73; that defendant executrix became entitled to it by virtue of her appointment and qualification as executrix; that in her account of proceedings the savings bank deposit was specifically set forth as a part of the estate; that plaintiff was duly cited in the accounting, which resulted in a decree settling and passing the executrix’s account as filed, also discharging defendant executrix from all liability for the assets accounted for, including said deposit, upon making the payments as directed by the decree; that said decree was entered on March 11, 1914, prior to the commencement of the action, and the deposit still remains in the bank’s custody.

The counterclaim repeated the foregoing allegations of the defense and further alleged that while plaintiff was a $3,000 legatee under decedent’s will, she was also his debtor to the extent of $2,900 which the decree in the proceeding to which' she was cited offset against her legacy. The prayer for judgment in the counter-" claim, among other things, is for the amount of the deposit, with interest.

Assuming that the rights of the parties are determined by the Code as it stood in March, 1914, the surrogate then had jurisdiction to ascertain the title to plaintiff’s legacy or distributive share, to offset the debt due by plaintiff to the estate, also to exercise all other power, legal or equitable, necessary to the complete disposition of the matter. Code Civ. Pro., § 2472a. By the decree of March 11, 1914, the surrogate exercised this power upon due citation to plaintiff. Even under the Code as it existed before the amendment of 1910, expressly authorizing the surrogate to enforce set-offs as well as to exercise all power, legal or equitable, necessary to the complete disposition of accountings," the weight of authority is that the surrogate’s determination of the amount or disposition of an estate, legacy or distributive share, preeludes any cited party to a decree from suing the executor to enforce by personal action or otherwise a different disposition of the fund or assets included (whether erroneously or correctly) in the accounting and decree settling the accounts. Cline v. Sherman, 144 N. Y. 602, 605, 606; Skillin v. Central Trust Co., 80 App. Div. 206, 208, 209; Phalen v. United States Trust Co., 100 id. 264, 270, 271; Chester v. Buffalo Car Mfg. Co., 183 N. Y. 426, 435, 436.

The cases arising under the statutory proceedings . to sell a decedent’s real estate for the payment of his debts are not in point, nor are the cases based on the former theory that the Surrogate’s Court is merely an inferior court of examination before trial. Since 1910 it is for many purposes a superior court with general statutory equity jurisdiction.

Demurrer overruled, with costs.  