Opinion
March 1, 1957
Werner Galleski for Marvin G. Florman, petitioner.
Jaffa Silverman for Freedman Slater, respondent.
Stull Stull for Louise Jacobson, as executrix of Gunther Jacobson, deceased, and another, respondents.
This is an application by the ancillary administrator c.t.a. for the consent of the court to the transfer to this court, pursuant to subdivision 9 of section 40 of the Surrogate's Court Act, of an action pending in the Supreme Court, New York County.
In May, 1956 the representative of this estate instituted a discovery proceeding against Freedman Slater, Inc. to recover a fund of some $3,000. This same fund has been the subject of much litigation in the Supreme Court and in the Appellate Division, First Department. (See Jacobson v. Freedman Slater, 275 App. Div. 631, 286 App. Div. 778, N.Y.L.J., Feb. 4, 1957, p. 6, col. 5.) There are several claimants to the fund in the Supreme Court action, none of whom is a party to the discovery proceeding in this court. The Appellate Division in directing a new trial and the Judge in Special Term on a motion for summary judgment have suggested that the representative of this estate be notified of the trial and invited to assert the estate's claim to the fund, if any, in the action in the Supreme Court. Notwithstanding these suggestions the representative of this estate has not sought to intervene nor has he been made a party to the Supreme Court action.
It would appear that the title to the fund should be disposed of in the Supreme Court action to which the several claimants to the fund are parties. In these circumstances the motion for the consent of this court to the transfer of the action is denied as a matter of law and in the exercise of the court's discretion.
Submit order on notice.