
    Cass v. Cass et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1891.)
    1. Testamentary Trustees—Accounting—Equity Jurisdiction.
    Notwithstanding Code Civil Proc. R. Y. § 2802 et seq., gives the surrogate court jurisdiction to compel a testamentary trustee to account, the supreme court, as a court of equity, also has jurisdiction of an action to compel such account in case proceedings for that purpose are not pending before the surrogate.
    
    8. Objections to Reference—Questions of Law Involved—Affidavit.
    An affidavit in opposition to a motion to refer a cause, on the ground that questions of law will arise, which merely alleges such fact instead of stating what the points of law are, so that the court may see whether they are material or difficult, or will necessarily arise, is too general.
    •8. Equity Jurisdiction—Remedy at Law—Pleading.
    Defendant, in an equity suit, in order to insist that an adequate remedy exists at law, must so allege in his answer.
    Appeal from special term, Schuyler county.
    Action by Samuel W. Cass against Marcus M. Cass, individually, and "Marcus M. Cass, impleaded, etc. From an order referring the cause defendants appeal'. Affirmed.
    The order appealed from recites that it was made “upon the affidavits of ■Orlando Hurd, C. H. Everts, Frances Cass, and George D. Borman, and upon the proceedings heretofore had in this action, including the pleadings and •orders heretofore made, and upon affidavits of Marcus M. Cass and Marcus M. Cass, Jr.” The complaint alleges that Cynthia Ann Freer, of the town •of Dix, now in the county of Schuyler, died on the 1st of October, 1853, leaving her last will and testament and codicil, which were duly admitted to probate; and that by said will a legacy of both real and personal property was bequeathed to the plaintiff. The will and codicil are annexed, and made •a part of the complaint. And the complaint alleges that the property so bequeathed and devised, some .$20,000, went into the hands of and “was received by the said Marcus M. Cass and Orlando Hurd, as trustees for this •plaintiff, under said will.” It also alleges “that the said Marcus M. Cass and •Orlando Hurd have never rendered, made, or filed an account of their proceedings, as such trustees, to or with any court having jurisdiction thereof.” It is also alleged that on the 27th of February, 1891, the plaintiff caused a petition to be tiled in the surrogate’s office of Schuyler county, and a citation to be issued thereon requiring the said Cass and Hurd to account in said surrogate’s court as trustees of this plaintiff, to the end that the amount justly due from them to this plaintiff might be ascertained. It is also alleged that Cass and Hurd appeared on the return of the citation in the surrogate’s' court, and that an answer to the petition was filed. It is also alleged in the complaint that “on the 13th day of April, 1877, the said Orlando Hurd passed over securities belonging to the trust fund so created for this plaintiff to the said Cass, the sum of $14,959.88, with accumulated interest, which were received by him as such trustee; since which time he-has wrongfully used, invested, and appropriated a large portion thereof, so that the same, the pretended securities or obligations taken therefor, are comparatively worthless and of little or no value.” It is also alleged that the trustees have given no security for the trust fund, and that since the probate of the will they have become insolvent. It is also alleged “that the said trustees now have money, or should have, to the amount of upwards of $20,000, to which this plaintiff is entitled, and which they have been repeatedly called upon to pay Over, all of which they have neglected and refused to do.” In-the prayer to the complaint the plaintiff asks “ that they, and each of them, be required to render their and his account as such trustees or trustee as aforesaid, that the same may be judicially settled and determined, and that the moneys found due to the plaintiff may be paid over to him; that the-defendants, and each of them, be required to give security for any funds that may remain in their hands, or that they, and each of them, may be'removed-as such trustees, and some suitable and proper person or persons may be appointed in their place, to whom' such trust fund may be paid over, or for such other or further relief as may be proper in the premises.”
    The answer of Marcus M. Cass denies-many of the allegations in the complaint, and it alleges that, “by and with the consent of the plaintiff in this-action, certain securities, or alleged securities, amounting to $14,759.88, were-transferred to this defendant by the said Orlando Hurd, as such trustee, which was the only sum received by this defendant; and the said securities, and the-amount thereof, were so received by him at the request of the said plaintiff; and he thereupon approved of the same as the only amount of said trust fund, and approved of the character thereof, as being the only securities in which he was the beneficiary under said trust. * * *” The said defendant alleges that he has faithfully discharged his duty, and has “from time to time paid over to him all sums connected therewith, in pursuance of the directions of said will of Cynthia Ann Freer, deceased, whereby the same was created;” and he further “avers that he has paid the said plaintiff, from time to time, and at different times between the time that he accepted said trust in 1877 and before the commencement of this suit, a-large sum of money, and more than sufficient to pay to him the income received by him on account of such trust and directed to be paid over to said plaintiff, and has in addition thereto paid him an additional sum to the amount of more than seven hundred dollars, including expenses, commission, and other just charges upon said fund, for which he- lias from time to time rendered a statement to the plaintiff, and at all times, when requested so to do, he has rendered and delivered to him such statements, all of which were approved when so rendered by the plaintiff as correct and proper.” He also alleges in his answer that “he is advised and believes the surrogate’s court of the proper county has full and ample power and authority to hear and determine said accounting, and that this court ought not to have or to entertain jurisdiction thereof, or otherwise entertain this suit;” and he also sets up the statute of limitations. In the affidavit of Frances Cass used upon the motion it is stated “ that in February last said Everts did institute proceedings in this matter before the surrogate of Schuyler county, in which this defendant appeared and filed his verified answer, and such proceedings were discontinued;' * * * after which, and on the 17th day of April, this action was commenced.” In an affidavit used upon the, motion to refer, Mr'. Everts, the attorney for the plaintiff, states “that, to deponent’s personal knowledge, the trial of this action will involve the" examination of a long account, embracing over five hundred different items, including the computation of interest on over seventy-five different items and rests, extending over a period of thirty years.” In the affidavit of Frances Cass it is stated that the defendant has “over $600, the income of said trust fund, which he has been directed by the plaintiff to pay over to this deponent, and which he has refused to do.” In the affidavit of Marcus M. Cass, Jr., one of the attorneys for the appellants, it is stated “that this suit involves, as deponent verily believes, important and intricate questions of law, which will necessarily have to be determined upon the trial of this cause;” and healso adds “that there is a further legal question which will arise therein concerning the solvency of the defendant Cass, and his fitness to continue as a trustee therein.”
    Argued before Hardin, P. J., and Merwin and Williams, JJ.
    
      John J. Van Allen and Marcus M. Cass, Jr., for appellants. Charles H. Everts, for respondent.
    
      
       See, contra, Morse v. Smith, 17 N. Y. Supp. 385.
    
   Hardin, P. J.

Appellant, in his argument before us, urges certain objections to the order to show cause, which is in the nature of a notice of motion, and asks us to reverse the order on alleged technicalities and irregularities in the nature of preliminary objections; but, upon turning to the order, we are unable to discover that such objections were taken at the special term. It is too late for the appellant to raise them on this appeal in the first instance.

2. The appellant insists that the complaint does not state facts sufficient to constitute a cause of action, and insists that it must appear on the face of the complaint that the party coming into a court of equity lias not an adequate remedy at law.

(а) In answer to such position taken by the appellant, it may be observed that section 3339 of the Code of Civil Procedure provides as follows: “There is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished.”

(б) It has lately been held by the court of appeals that “the defendant in an equity action, in order to insist that an adequate remedy exists at law, must set it up in his answer.” Ostrander v. Weber, 114 N. Y. 96, 21 N. E. Rep. 112. The judge at special term correctly observed that no defense of that character is pleaded.

3. It is insisted in behalf of the appellant “that the surrogate’s court has complete and adequate power to administer the machinery necessary to force an accounting of the trustee, and to settle the same without invoking the aid of a court of equity;” and the learned counsel for the appéllant refers to section 2802 et seq. of the Code of Civil Procedure. It may be conceded that the proper surrogate would have jurisdiction ol' the trusteed and that proceedings might be initiated in the surrogate’s court to compel him to account and perform his duties as trustee, and that such proceedings might be instituted at the instance of any one interested in the fund in the hands of the trustee; but we do not Understand that those sections of the Code, or any other legislation, has deprived the supreme court of its jurisdiction over trustees and trust funds. In Wager v. Wager, 89 N. Y. 168, it was said: “Where complete relief can be obtained in the surrogate's court, a court of equity may, in its discretion, decline on that ground to entertain an action for an accounting or other relief against executors; hut the proposition that the court has no jurisdiction in such a case cannot be sustained.” When this action was commenced, no proceedings before the surrogate were pending, instituted by the plaintiff or by the defendant, for an accounting or a judicial settlement of the accounts of the trustee. In Rogers v. King, 8 Paige, 210, it was held that the jurisdiction of this court and of the surrogate over an executor or administrator to call him to account were concurrent; and it was further held in that case that, where a bill was filed in chancery against an executor or administrator for an accounting, in a subsequent proceeding brought before the surrogate, the pendency of the suit in chancery might be set up before the surrogate in the nature of a plea in abatement, and will constitute a valid objection to the proceedings therein. The doctrine of that case was referred to and followed in Groshon v. Lyon, 16 Barb. 467; and, after stating the rule as laid down in Rogers v. King, supra, the court observed: “The converse of the rule thus laid down would also hold. If there were a decree before the surrogate to account, it would be a bar to any proceeding for an account in the court of chancery, in all' cases where full relief could be had befoie the surrogate.” In Wood v. Brown, 34 N. Y. 337, the jurisdiction of this court over trustees and executors was a subject of inquiry; and, after referring to the statute conferring jurisdiction upon surrogates, it was observed by Judge Morgan, who delivered the opinion of the court, as follows: “It does not, however, follow that a court of equity may not exercise the same or concurrent jurisdiction;” and later on in the opinion he further adds: “But, then, it must be conceded that courts of equity, as a general rule, have ■a concurrent jurisdiction with surrogates’ courts in matters of accounting, as against executors and administrators. Rogers v. King, 8 Paige, 210. These courts may furnish a more comprehensive remedy, for they may proceed by injunction to restrain the further proceedings of executors until an account'can be taken, if there is danger of injury to the estate. The case at bar was a proper one to call on the defendant to render an account of his proceedings.” In Christy v. Libby, 5 Abb. Pr. (N. S.) 192, an action was brought to compel the defendant to account to the plaintiff for the assets he had received, and in the course of the opinion it was said: “The provisions of the Revised Statutes conferring the jurisdiction upon surrogates was to provide an inexpensive and summary mode of bringing executors, etc., 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, 8 Paige, 210; Will. Eq. Jur. 560.” In Christy v. Libby, 35 How. Pr. 119, it was held, viz.: “Courts of equity have jurisdiction to call upon executors and administrators to account. Such power was frequently exercised by the late court of chancery, although the surrogate had jurisdiction over such proceedings. The Revised Statutes do not confer on the surrogate exclusive jurisdiction over proceedings to compel executors, administrators, or collectors to account.” In the course of the opinion in that case, Van Vobst, J., said: “Courts of equity take cognizance of the conduct of executors, administrators, and other trustees. 3 Bl. Comm. 437; Will. Eq. Jur. pp. 88, 490.” In Haddow v. Haddow, 3 Thomp. & C. 777, it was held: “A court of equity has jurisdiction to compel an accounting to parties entitled to an estate from those who have it under their control, when the proper parties are in court.” This case was alfirmed in the court of appeals, (59 N. Y. 320.) and, in delivering the opinion the court (Rafallo, J.) says nothing inconsistent to the doctrine of the cases to which we have already referred. Appellant’s counsel calls out attention to Seymour v. Seymour, 4 Johns. Ch. 409. We have examined it, and find nothing inconsistent with the doctrine of the cases already referred to. In that case it was held that “a surrogate has concurrent jurisdiction with the court to compel administrators to account and make distribution of the estate;” and it was further held that, after administrators had been brought before the surrogate “for an account and distribution of the intes. tate’s personal estate, this court will not, without some special and satisfactory reason, interfere with the proceedings of the surrogate by granting an injunction and sustaining a bill for general relief.” We think the case does not aid the argument of the appellant.

4. The appellant contends that the reference ought not to have been ordered, because the trial of the issue involved difficult questions of law. The affidavit on that subject is a general averment, and does not conform to the requirements of the adjudged cases. In Salisbury v. Scott, 6 Johns. 329, it was said: “Where a motion to refer a cause is repelled on the ground that questions of law will arise on the examination of the cause, the party must state what the points of law are, so that the court may judge whether they are material or difficult, and will necessarily arise, and that we may be satisfied whether the referees be a proper tribunal for the trial of the cause; otherwise, by the general affidavit, all references may be prevented.” This case was referred to with approval by Judge Paige in Dewey v. Field, 13 How. Pr. 439.

5. The special term has found in effect that the trial of the issues will require the examination of a long account. We think, upon a full consideration of all the matters alleged in the pleadings, and in the affidavits before the special term, the finding was warranted, and we are notdisposed to interfere with the same. In Welsh v. Darragh, 52 N. Y. 592, in the course of the opinion delivered, Chief Judge Church says: “This court will not review the finding below, that the action involves the examination of a long account, if the facts will warrant such a finding. If the facts show that the examination of a long account may be necessary, and the court below has decided to refer the action, this court will not interfere. It is only when it is palpable that no such account can be involved that an appeal will lie to this court. Kain v. Delano, 11 Abb. Pr. (N. S.) 29.” In one of the affidavits used upon the motion it was stated: “This action will involve the examination of a long account, embracing over five hundred different items, including the computation of interest on over seventy-five different items and rests, extending over a period of thirty years.” We think the conclusion reached at the special term should be sustained. Order affirmed, with $10 costs and disbursements. All concur.  