Opinion
April 29, 1959
Appeal from the Monroe Special Term.
Present — McCurn, P.J., Kimball, Williams, Goldman and Halpern, JJ.
Order reversed, without costs of this appeal to any party and motion to dismiss complaint denied, without costs. Memorandum: In this action, the plaintiffs, beneficiaries of a trust under the last will and testament of Gothlieb Kittelberger, seek a judgment declaring that an alleged transfer of stock in the Webaco Oil Company by the defendant Central Trust Company of Rochester, New York, as executor and trustee of the estate, to Webaco Company was null and void and directing the Webaco Company to reassign the stock to the executor. The defendant moved to dismiss the complaint under subdivision 3 of rule 107 of the Rules of Civil Practice on the ground that there was another action pending between the same parties for the same cause. The motion was granted by the Special Term conditionally, it being provided in the order that the motion would be denied if the plaintiffs offered to stipulate to consolidate this action with certain Surrogate's Court proceedings or in lieu of consolidation that the Webaco Company be made a party to those proceedings but that, if the plaintiffs refused to so stipulate, the motion would be granted "in the exercise of discretion and not as a strict legal right". We can find no authority for this order. At the time this action was brought, there was pending in the Surrogate's Court a proceeding for the judicial settlement of the account of the defendant as executor and trustee. No written objections to the account had as yet been interposed by the plaintiffs or by any other beneficiaries. The relief sought by the plaintiffs in the present action was not sought by them or by any other party in the Surrogate's Court proceeding. The motion to dismiss the complaint under subdivision 3 of rule 107 should have been unconditionally denied. All concur.