Opinion
December 22, 1942.
Action by an alleged widow to recover an intestate share of her deceased husband's estate, pursuant to section 35 of the Decedent Estate Law (Cons. Laws, ch. 13). Order granting motion of defendants to transfer the action to the Surrogate's Court of New York County reversed on the law and the facts, with ten dollars costs and disbursements, and the motion denied, without costs. In the light of all the circumstances, the granting of the motion was an improper exercise of discretion. Plaintiff was expressly afforded a right of action pursuant to statute. (Decedent Estate Law, § 146; Surrogate's Court Act, § 211.) While the rule that the Supreme Court will not retain jurisdiction where the Surrogate's Court has concurrent jurisdiction would, nevertheless, ordinarily prevail ( Noll v. Ruprecht, 256 App. Div. 926; affd., 282 N.Y. 598), no timely application was addressed by the defendants to the discretion of the Supreme Court. Although the action was commenced in the Supreme Court on March 21, 1941, the defendants did not make such application until the action was ready to be tried on October 26, 1942. Under these circumstances, and in the light of the fact that a simple issue was presented, namely, as to the marriage of plaintiff with decedent, so that no advantage would be obtained by transfer to the specialized jurisdiction of the Surrogate's Court, the trial should have proceeded. Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.