
    CHRISTY against LIBBY.
    
      New York Common Pleas ; General Term,
    January, 1869.
    Action fob Accounting.—Pleading.
    An action lies by an administrator against one who had been appointed collector of the estate of the plaintiff's intestate, to compel him to account for the assets.
    In the complaint in such action it is not necessary to aver an accounting had before the surrogate; for the jurisdiction of courts of equity is concurrent.
    Nor is necessary to aver the residence of the intestate, in order to establish the jurisdiction of the surrogate.
    The New York court of common pleas have the same powers as those exercised by the late court of chaneqry in such cases.
    If the defendant relies upon the pendency of proceedings on an accounting pending at the commencement of the action, it should be set up by answer.
    Form of a complaint held sufficient.
    Appeal from an order overruling a demurrer.
    This action was brought by Harriet E. Christy, administratrix of thg estate of Edwin P. Christy, deceased, against James S. Libby, individually and as collector of the estate of said Edwin, to compel the defendant to account to the .plaintiff for the assets he had received as such collector, and that he be ordered to deliver up and pay over the property and moneys of the estate, and the value of property lost through his mismanagement. The allegations of the complaint were in the following form :—
    The complaint of the plaintiff, as administratrix of the estate of Edwin P. Christy, deceased, shows to this court:
    First.—That on or about the 21st day of May, 1862, the said Edwin P. Christy died intestate, and that on the 22nd day of May, 1862, letters of administration upon the estate of said Edwin P. Christy, were duly issued and granted by the surrogate of the county of New York, of this State, appointing this plaintiff administratrix of all the goods, chattels and credits which were of said deceased, and that thereupon this plaintiff duly qualified as such administratrix, and entered upon the discharge of the duties of her said office.
    Second.—That afterwards, a contest arose before said surrogate as to the right of the plaintiff to be such administratrix, and, during the pending of such contest, and on the day of , the defendant, James S. Libby, was duly appointed collector of the estate of said Edwfn P. Christy, deceased, by the surrogate of said county of New York, and the said defendant thereupon duly qualified according to law, and entered upon the duties of said office, and as such collector, took possession of his goods, chattels, moneys and effects, set forth in the schedule annexed to this complaint, and which forms part thereof.
    Third.—That said appointment of said defendant was only to continue until it was determined who was entitled to administer upon the estate of said Edwin P. Christy, deceased ; and that afterwards, on or about day of December, 1866, said contest was finally decided and determined in favor of this plaintiff; and that on or about the 12th day of January, 1867, a final decree was duly entered in the office of the clerk of the city and county of Hew York, and in the said office of the surrogate of the county of Hew York, reversing, annulling, and setting aside a former decree of the said surrogate, denying the plaintiff’s right to said letters of administration aforesaid, and affirming and confirming the plaintiff’s right to administer upon the estate of said Edwin P. Christy, deceased, and to the full and complete control and possession of all the personal property of which he, the said Edwin P. Christy, died possessed.
    Fourth.—That this plaintiff has, during the month of October, 1867, and prior to the commencement of this action, demanded of said defendant that the property, money, and effects of which he became possessed, as such collector, be delivered to her, and that he account therefor to her, as such administratrix, and the said defendant refused, and still refuses so to do.
    
      Fif th.—This plaintiff alleges, on information and belief, that a large amount of said property and effects have been converted into money, and that said defendant fraudulently retains possession thereof, and all of said property, and the proceeds thereof; that he has, by fraud, neglect, and mismanagement, lost a large amount of the personal property and effects of which he became possessed as such collector ; and by and through his omission and neglect, lost a large amount of other personal property and effects, to which he was entitled as such collector ; and that the value of all the said personal property and effects is many thousands of dollars; and to all which, or. the value thereof, this plaintiff, as such administratrix, is now entitled.
    Wherefore this plaintiff demands judgment against the defendant, that he account to this plaintiff for all the personal property and effects,moneys which have come into his possession and to which he was entitled as such collector, that he be ordered and directed to deliver to this plaintiff, as such administratrix, all the personal property and effects still remaining in his possession; that he pay to this plain tiff, as such administratrix, all moneys in his possession, and to which he was entitled as such collector ; that he pay to the plaintiff, as such administratrix, the value of all personal property and effects which have "been lost through his mismanagement or neglect; and that the plaintiff have such other and further judgment against the defendant to which she may "be entitled, and that the defendant pay the costs of this action.
    To this complaint the defendant interposed a demurrer assigning the following as the grounds thereof.
    First.—That it appears upon the face of the complaint that this court has no jurisdiction of the subject of this action.
    It appears on the face of the complaint that the defendant was appointed collector of the estate of the deceased by the surrogate of the county of New York, and that the surrogate’s court of the said county is the proper forum in which to adjust the accounts, and control the proceedings of its officers, and the persons deriving their authority from that court.
    Second.—That several causes of action have been improperly united ; one being an action for an accounting as collector and special administrator, and the other an action for alleged negligence or mismanagement in conducting a trust, whereby the plaintiff seeks to recover the value of personal property and effects, alleged to have been lost through the defendant’s mismanagement.
    Third.—That the complaint does not state facts sufficient to constitute a cause of action.
    At special term in December Mr. Justice Yak "Vokst heard the demurrer, and gave judgment for the plaintiff with leave to answer. His decision, which is now affirmed by the court at general term, is reported in 35 How. Pr., 119.
    The defendant appealed therefrom.
    
      Amos G. Hull, for the appellant.
    —For reasons which will appear obvious to the court, and to save the time of the court, I propose to state my points in the inverse order stated in the demurrer.
    I. The complaint does not state a cause of action. It nowhere appears on the face of the complaint, that the testator ever resided in the county of New York. The fact should appear, in order to give the surrogate jurisdiction. The residence of the intestate is a material and traversable fact. It is a j urisdictional fact, and should be stated in such a form as to tender an issue to the adverse paity. The complaint should contain a particular statement of the time and place of the appointment of the administratrix, and the residence of the intestate and the functionary by whom the 1 etters of administration were granted, to the end that the .court may determine whether the representative suing as such has any status in court, and whether the surrogate appointing such representative had any jurisdiction (Beach v. King, 17 Wend., 197 ; 4 Den., 80 ; White v. Joy, 13 N. Y. [3 Kern.], 83 ; Sheldon v. Hoy, 11 How., 11). In the case of Forrest ®. Mayor, &c., the complaint stated, as in this ca.se, that the administrator had been duly appointed, but Judge Leonard held the complaint was defective. The defendant has a right to try the issue, whether the intestate ever resided in the county of New York, to the end that he may never be compelled, to answer to any other administratrix (Vide 13 Abb. Pr., 350 ; Vide Hill v. Stocking, 6 Hill, 314, opinion of Bronson, J. ; Gould Pl., 8 ; 1 Chitty Pl., 287 ; Stephen's Pl., 283 ; Myers v. Machado, 6 Abb. Pr., 198). The defendant has a right to show on the trial that the intestate did not die in the county of New York, and that the surrogate of this county acquired no jurisdiction on his estate. That is a traversable fact, and must be alleged in order to- sustain the complaint (Safford v. Brew, 3 Duer, 627). The surrogate’s court being a court of limited and statutory jurisdiction, a court of common law jurisdiction, when matters and proceedings before the surrogate are under review, can take nothing by implication. This court can take no judicial notice of proceedings before surrogates’ courts as such, and the pleadings alleging such proceedings must set forth the jurisdictional facts, to the end that the adverse party may have an opportunity to traverse the jurisdiction (Sibley v. Waffle, 16 N. Y, 
      180 ; People v. Barnes, 12 Wend., 492 ; People v. Koeber, 7 Hill, 39). It is not enough to allege in general terms that the plaintiff was duly appointed administratrix of the estate of Edwin P. Christy, deceased, by the surrogate of the county of Few York, but the facts which form the basis of the jurisdiction, conferring the right to make such appointment, must be stated (Cleveland v. Rogers, 6 Wend., 438 ; Sackett v. Andross, 5 Hill, 327 ; Van Etten v. Hurst, 6 Id., 311 ; People v. Koeber, 7 Id., 39 ; Whitney v. Shufeldt, 1 Den., 592).
    II. It nowdiere appears upon the face of the complaint, that the removed or superseded special administrator (the defendant) has been cited to account before the surrogate. It is provided by 2 Rev. Stat., 95, § 68 (2 Rev. Stat., 98, Edmonds' Ed.), that whenever the authority of an executor or administrator shall cease or be revoked, or he be superseded for any reason, he may be cited to account before a surrogate at the instance of the person succeeding to the administration of the same estate in like manner as thereinbefore provided for a creditor. Section 69 enables the removed administrator (or collector) to settle his account voluntarily by citing the new administrator and others interested, and such settlement is to have the like effect as a settlement at the instance of a creditor. What decree is the surrogate to make ? Sections 68 and 69 give the new administrator, in enforcing this account, the character of a creditor. He is entitled to the balance for the purpose of administration. Sections 18 and 19, 2 Rev. Stat., 116 (120 Edmonds' Ed.), provide the nature of the decree to which the creditor is entitled. The surrogate has power to decree in favor of a creditor the payment of a demand. Then, after obtaining his decree for a balance, what is his remedy \ Section 19 provides an ample one. The surrogate may order the collector’s bond to be sued. The question whether the decree of the surrogate has been obeyed will then be the only question to be tried. The plaintiff in this case has lost sight of the necessity of procuring his decree for such balance (Vide People v. Corlies, 1 Sandf., 228, reasoning of Vandekpoel, J., at p. 245). This being the only remedy pointed ont by statute, for an incoming administrator to call his removed predecessor to account, all other remedies are superseded on the maxim “ Inclusio unius est exelusio ulterius.”
    
    III. Several causes of action have been improperly united. The plaintiff prosecutes for an accounting, which is a matter always arising on contract. Secondly, for fraud and neglect of duty. A plaintiff cannot join in his bill, even against the same defendant, matters of different natures, although arising out of the same transaction (Dan. Ch. Pr., 449, Latting v. Latting, 4 Sandf. Ch., 31; 12 How. Pr., 46, opinion of Woodruff, J. ; Jackson v. Forrest, 2 Barb. Ch., 576, in point; Story Eq. Pl., §§ 274, 286, of 6th ed. ; Hunter v. Powell, 15 How. Pr., 221, in point).
    IY. Conceding, for the sake of the argument, that this court has concurrent jurisdiction with surrogate courts in the matter of calling executors and administrators to account, still it is respectfully submitted, that this court ought not to entertain jurisdiction of such cases, unless something appears in the case showing that the surrogate is disqualified from acting. It was manifestly the intention of the legislature to confer such jurisdiction primarily on the surrogate, on the grounds of convenience and public policy. There is no fact alleged in this case showing the surrogate to be disqualified, or showing why these accounts should not be settled in the forum primarily intended for the settlement of these accounts. The general jurisdiction of the surrogate in this State is conferred by § 1, title 1, chapter 2 part 3, of the revised statutes (2 Rev. Stat., 220 ; 229 Edmonds's ed.). By subdivision 3, of that section, jurisdiction is expressly conferred upon him “ To direct and control the conduct and settle the accounts of executors and administrators” (Seaman v. Duryea, 11 N. Y. [1 Kern.], 324). “It was the intention of the legislature, in conferring this jurisdiction on surrogates, to provide an inexpensive and summary process for the settlement and adjustment of the accounts of executors and administrators, and to supersede the necessity of a resort to the court of chancery for that purpose.” The jurisdiction was extended by the act of 1850 to trustees under a will (Laws of 1850, ch. 587 ; Vide Will. on Ex., 37). The tendency of legislation in this State, for the last fifty years, has been to enlarge the jurisdiction of the surrogates’ courts. The doctrine of the court of appeals in the case cited (11 N. Y. [1 Kern.], 327) is that the legislature intended to supersede the authority of the other equity courts in these matters of accounting, on grounds of economy, and for the summary and speedy administration of justice. It is submitted that this court may take judicial notice of the several interlocutory orders based on proof which at least two of the judges holding this general term, when sitting at chambers, deemed sufficient, which orders were made upon the theory, based upon proof, that before the suit was commenced the surrogate had acquired jurisdiction of the parties and subject-matter, and was proceeding to the adjustment of the same accounts referred to in the bill of complaint herein. The reference is to the orders staying the plaintiff’s proceedings when an attempt was made to examine the defendant as a witness before trial. If it is proper for this court to take cognizance of the proof offered on those motions, then the case is within that in 8 Paige, and the court would not feel bound to entertain jurisdiction if they have it (Rogers v. King, 8 Paige, 210).
    
      C. Bainbridge Smith, for the plaintiff, respondent.
   By the Court.—Daly, F. J.

—The complaint avers the day of the death of the intestate, the granting of letters of administration upon his estate to the plaintiff, the day when they were granted, that they were granted by the surrogate of the city and county of New York and that the plaintiff qualified and entered upon her duties, as administratrix, which is all and even more«than was necessary (Ring v. Roxberough, 2 Tyr., 468 ; 2 Will, on Ex., 1595, and note 1, 4th Am. Ed. ; 1 Chitty on Pl., 315; 2 Id., 109,110; Ch. Am. Ed.; Ketchum v. Ketchum, 4 Cow., 87; Goldthwayte v. Petrie, 5 T. R., 234). The granting of letters by the surrogate to the plaintiff is prima facie evidence of her due appointment, and that he had the requisite evidence before him to authorize his action (Sibley v. Waffle, 16 N. Y, 180, and in the cases before cited.)

It was not necessary to aver an accounting before the surrogate. The provisions of the revised statutes conferring the jurisdiction upon surrogates was to provide an inexpensive and summary mode for bringing executors, &c., to account, but did not take away the power theretofore exercised by courts of equity to afford this species of relief. It still exercises a concurrent, and in some cases, an exclusive jurisdiction (Rogers v. King, 1 Paige, 210 ; Will. on Eq. Jur., 560).

This court has the same power exercised by the court of chancery, and by the supreme court in all actions where the defendant resides or is personally served with process in this city (Bowen v. Irish Presbyterian Congregation, 6 Bosw., 246). If the defendant had been cited to account before the surrogate, and an account was pending before him at the commencement of this suit it should be set up by way of answer; for the defendant cannot be required to account before two tribunals at the same time (Percival v. Hickey, 18 Johns. 257 ; Gr. Pr., 228, and cases there cited), where another action or proceeding for. the same cause is pending.

The decision of the court below that the plaintiff was entitled to judgment upon the demurrer was therefore right, and the order appealed from should be affirmed.

Order affirmed.  