Opinion
October 2, 1961
In an action to set aside a conveyance of real property, the plaintiff appeals from an order of the Supreme Court, Kings County, entered March 7, 1961, denying his motion to transfer the action to the Surrogate's Court, Kings County, pursuant to section 190-a of the Civil Practice Act. The conveyance sought to be set aside is one made by plaintiff's deceased wife, shortly before her death, to her brother, who is the defendant herein and the administrator of her estate. A proceeding to settle the administrator's final account is pending in the Surrogate's Court, where plaintiff has filed objections, inter alia, to the administrator's failure to account for rents and profits of the real property which is the subject of this action. The Surrogate of Kings County, in his decision in support of his order consenting to the transfer of this action, has stated that the dispute between the parties is one in which the decedent's estate is involved; that the dispute is closely linked with the administration of the estate; and that no disposition can be had as to the administrator's account until the determination as to the ownership of the real property. Order reversed, with $10 costs and disbursements, and motion to transfer the action to the Surrogate's Court, Kings County, granted. In our opinion, under the circumstances here, the denial of the motion was an improvident exercise of discretion (cf. Surrogate's Ct. Act, § 40; Matter of Poth, 155 Misc. 116; Shearn v. Lord, 16 Misc.2d 224, affd. 3 A.D.2d 823). Nolan, P.J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.