Opinion
March 1, 1943.
In an action brought to recover moneys allegedly due to the plaintiff, the testator's divorced wife, which moneys allegedly accrued in testator's lifetime under the provisions of a decree of divorce rendered in the State of Nevada and under an agreement between the parties therein mentioned, the defendant executor appeals (1) from an order granting summary judgment in favor of the plaintiff, (2) from the judgment thereon entered, and (3) incidentally brings up for review an order denying defendant's motion to remit the trial of this action to the Surrogate's Court of Nassau County. Order granting summary judgment and the judgment thereon entered reversed on the law and facts, without costs, and the motion for summary judgment denied, without costs. Order denying remission of trial to Surrogate's Court of Nassau County affirmed, without costs. Upon the facts disclosed in this record, the order granting summary judgment was not proper. This case, in our opinion, should be made the subject of disposition by regular trial rather than summarily. ( Emley v. Gray, 263 App. Div. 894, and cases therein cited.) The order denying remission of the trial was properly made. (Surrogate's Court Act, § 211.) Close, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur.