Ryan v. Benjamin
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Elizabeth E. Benjamin, as administratrix, etc., from an order of the Supreme Court, made at the Cortland Special Term and entered in the office of the clerk of the county of Cortland on the 5th day of March, 1901, denying defendant’s motion to stay all proceedings in this action, and granting plain till:’s motion to stay a proceeding instituted in the Surrogate’s Court of Chenango county to sell certain real estate of defendants intestate for the…
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Appeal by the defendant, Elizabeth E. Benjamin, as administratrix, etc., from an order of the Supreme Court, made at the Cortland Special Term and entered in the office of the clerk of the county of Cortland on the 5th day of March, 1901, denying defendant’s motion to stay all proceedings in this action, and granting plain till:’s motion to stay a proceeding instituted in the Surrogate’s Court of Chenango county to sell certain real estate of defendants intestate for the payment of his debts. Upon the 24th of February, 1906,. Elijah H. Benjamin died. At his death he was the owner of certain…
1Opinion of the Court
Smith, P. J.:
The learned justice at Special Term has granted the plaintiff’s motion to stay the proceeding in Surrogate’s Court on the ground that the issues presented in that proceeding could all he disposed of in the trial 'of this action, and as this action was first brought, such issue should be there tried and determined. We cannot agree with this conclusion. The main issue presented in the proceeding in Surrogate’s Court is as to the deficiency of personal assets to pay the decedent’s 'debts. This issue is wholly irrelevant to the partition action, inasmuch as the proceeds of the sale…
2Cited by3 opinions
- In re the Estate of CollinsNew York Surrogate's Court · 1924
- Landgrebe v. LandgrebeNew York Supreme Court · 1930
- Pitman v. SmithAppellate Division of the Supreme Court of the State of New York · 1909