Opinion
October 5, 1967
Appeal from order entered on May 5, 1967, dismissed, as academic, without costs or disbursements. No opinion. Order entered March 20, 1967, dismissing without prejudice petition and supplemental petition for the judicial settlement of trustees' accounts of inter vivos trusts and for other relief, unanimously reversed, on the law and the facts, with $50 costs and disbursements to all parties filing briefs, payable out of the trust estate, the petition and supplemental petition reinstated, and the matter remanded to the Justice who dismissed the petitions, for proceedings not inconsistent herewith. The supplemental petition seeks reimbursement of excessive payments to remaindermen because of inadequate provision for inheritance and estate taxes. The amount of said taxes and the liability of the remaindermen therefor are matters relating to the trusts and within the scope of this special proceeding under CPLR 7701. Here is not involved an attack on the validity of the trusts or a matter unrelated to the trusts, as in Matter of Reilly ( 17 Misc.2d 1077, 1079, affd. 3 A.D.2d 1001) and Matter of Bucherer ( 21 Misc.2d 566) the authorities relied on by Special Term. Litigation should not be dismissed because of error in the choice between a special proceeding and an action. ( Matter of Mandis v. Gorski, 24 A.D.2d 181.) CPLR 103 (subd. [c]) provides that "If a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution." Its purpose is to avoid dismissals for errors in form alone and to allow a court which has proper jurisdiction of the parties to permit the continuation of litigation without regard for technical defects.
Concur — Stevens, J.P., Rabin, McNally and Witmer, JJ.