Gregory v. Wilkes

This is a motion to dismiss on the ground that there is another action pending between the same parties for the same cause. The other u action” in this case is a proceeding pursuant to article 79 of the Civil Practice Act, for the judicial settlement of the account of trustees of an express trust; but, if the conditions of the rule are met, the fact that the other litigation is a special proceeding rather than action is immaterial (Colson v. Pelgram, 259 N. Y. 370).

The amended complaint in the instant action brought by the sole heirs and distributees of the settlor alleges fraud and undue…