and book accounts and notes vested in such administratrix with the will annexed; and this amount should therefore be deducted from the amount for which the estate of Patrick Walton, as executor, is chargeable, leaving a balance chargeable against the estate of Patrick Walton of $17,286.33. The referee then found that Patrick Walton was entitled to credits aggregating $9,791.09, which would leave a balance chargeable against the estate of Patrick Walton in favor of the estate of James Hernon of $7,495.21. Exceptions were filed to this report, and it was modified by the surrogate by deducting $181.09 from the amount, which would leave the amount for which the estate of Patrick Walton is chargeable at $7,314.13. The surrogate in his opinion states that "it does not appear that any of the assets of James Hernon have come into possession of Anna T. Walton as executrix of the will of Patrick Walton, the deceased executor of James Hernon"; that "the legal representative of the estate of James Hernon is Anna T. Walton, as administratrix of his estate with the will annexed"; that "the decree must therefore here require her, as executrix of the will of Patrick Walton, to pay the amount adjudged to herself as such administratrix, etc., of James Hernon"; and that no distribution can be had of any amount thus recovered until Mrs. Walton shall account as administratrix, etc., of James Hernon. The surrogate further directed that the costs of the proceeding, other than the disbursements for the stenographer, are to be charged against Anna T. Walton personally; and a decree was entered in accordance with this conclusion, and from that decree Anna T. Walton, as executrix and individually, appeals. The jurisdiction of the surrogate in this proceeding is based upon section 2606 of the Code of Civil Procedure. That section provides: "Where an executor. * dies, the Surrogate's Court has the same jurisdiction, upon the petition of his successor, or of a surviving executor, administrator or guardian, or of a creditor, or person interested in the estate, * to compel the executor or administrator of the decedent to account, which it would have against the decedent if his letters have been revoked by a surrogate's decree. On a petition filed either by or against an executor or administrator of a deceased executor, administrator, guardian or testamentary trustee. The Surrogate's Court has also jurisdiction to compel the executor or administrator, or successor of any decedent, at any time to deliver over any of the trust property which has come to his possession or is under his control, and if the same is delivered over after a decree, the court must allow such credit upon the decree as justice requires." By this section the surrogate is given power to require the executor of a deceased executor to account for the acts and doings of the decedent and for the trust property which has come into the possession of the decedent, and may at the same time compel the executor or administrator of a deceased executor to deliver over any of the trust property which has come into his possession or under his control. It seems to me that an accounting under this section can determine the condition of the account as between the decedent and the estate of his deceased executor, and if this adjudication thus settling the accounts is valid, the decree of the surrogate should be modified by fixing the amount of $7,314.13 as before indicated. The surrogate has also jurisdiction to compel the executor of the de and 132 New York State Reporter ceased executor to deliver over any of the trust property which has come to his possession or is under his control; but he can only require the executor of the deceased executor to pay over to his successors money or property which has come into his possession or under his control. As there was no allegation in the petition that any money had come into the possession of Anna T. Walton, as executrix of Patrick Walton, that belonged to the estate of James Hernon, and as there was no finding that there was any such property, there could be no decree directing the appellant, as executrix of the estate of Patrick Walton, to pay to herself as administratrix with the will annexed of Patrick Walton any money or to deliver any property. This portion of the decree, therefore, which directs Anna T. Walton, as executrix of Patrick Walton, to pay over or deliver any property to herself as administratrix of the estate of James Hernon, should be stricken out. The decree also requires that the costs of this proceeding be paid by Anna T. Walton personally. I do not find that there was any jurisdiction for this provision of the decree. Anna T. Walton has been guilty of no misappropriation of funds and of no wrongdoing, so far as is disclosed by this record. She has received no property as executrix of Patrick Walton of any kind. She is chargeable with no neglect or violation of duty in relation to the estate of James Hernon, or in relation to the estate of Patrick Walton, so far as is disclosed by this record. The fact that her husband was a defaulter, or that he misappropriated the property of this estate, is certainly no reason for charging her personally with the costs of this proceeding. I think, therefore, the judgment should be modified by striking out the provision making these costs payable by Anna T. Walton personally, and by providing that they should be payable by the estate of Patrick Walton. As this disposed of all the questions presented on this appeal that requires discussion, the decree is modified as before indicated, and, as modified, affirmed, without costs of this appeal. All concur. (112 App. Div. 181) MLADINICH v. LIVINGSTON. (Supreme Court, Appellate Division, First Department. March 23, 1906.) 1. DISMISSAL AND NONSUIT-FAILURE TO PROSECUTE-SUFFICIENCY OF SHOWING. On a motion to dismiss for failure to prosecute, it appeared that the action was at issue in September 1900, that no steps were taken to place it on the calendar until November, 1905, when a notice of trial for December term was served, and that younger issues had been tried in their regular order on the calendar. Held to show a prima facie case of failure to prosecute under Code Civ. Proc. § 822, and General Rule of Practice 36, providing that when plaintiff neglects to proceed in the action, the court may, on the application of defendant, dismiss the complaint. [Ed. Note. For cases in point, see vol. 17, Cent. Dig. Dismissal and Nonsuit, §§ 140-152.] 2. SAME-EXCUSE FOR DELAY IN PROSECUTION-SUFFICIENCY. Defendant established a prima facie case of neglect to prosecute an action. Plaintiff showed that the action could not be properly noticed for trial until a prior action set up in the answer as a defense was dis posed of, but did not disclose any reason why the prior action could not have been discontinued. Held, that plaintiff failed to show that his neglect to prosecute was reasonable, necessary under General Rules of Practice 36, to prevent a dismissal of the action, on that ground. 3. SAME. Plaintiff also stated that owing to his impoverished condition he was unable to pay to his attorney the necessary disbursements required to place the case on the calendar. Held not to show that the neglect to bring the action to trial was reasonable. 4. SAME. That defendant waited before moving for the dismissal of the case because of neglect to prosecute it, until after plaintiff had noticed the action and put it on the calendar might be considered by the court in determining whether the motion should be granted. Appeal from Special Term, New York County. Action by Joseph Mladinich against Johnston Livingston, as president of the National Express Company. From an order denying a motion to dismiss the complaint on the ground of failure to prosecute, defendant appeals. Modified. Argued before O'BRIEN, P. J., and PATTERSON, INGRAHAM, LAUGHLIN, and CLARKE, JJ. Joseph W. Welsh, for appellant. INGRAHAM, J. Upon an affidavit of one of the attorneys for the defendant that this action was commenced on June 5, 1900, that it was finally at issue on September 15, 1900, and no steps were taken by the plaintiff to place the case upon the calendar until November 17, 1905, when a notice of trial for the December term in 1905, was served, and that younger issues have been tried in their regular order upon the calendar, the defendant made a motion to dismiss this action. Section 822 of the Code of Civil Procedure provides that where the plaintiff unreasonably neglects to proceed in the action against the defendant, the court may, in its discretion, upon the application of the defendant, dismiss the complaint as against the moving party and render judgment accordingly; and rule 36 of the general rules of practice provides that whenever an issue of fact in any motion pending in any court has been joined, and the plaintiff therein shall fail to bring the same to trial according to the course and practice of the court, the defendant, at any time after younger issues shall have been tried in their regular order, may move at Special Term for the dismissal of the complaint, with costs. These facts establish a prima facie case of neglect on the part of the plaintiff to proceed with the action, and the plaintiff was thereupon called to explain his neglect, or submit to a dismissal. Zafarano v. Baird, 80 App. Div. 144, 80 N. Y. Supp. 510; McMann v. Brown, 92 App. Div. 251, 87 N. Y. Supp. 38. Notwithstanding the fact that the defendants brought themselves within this section of the Code and the rule, the court denied the motion, with $10 costs to the plaintiff. The defendant having a prima facie case for the dismissal of the complaint, the question was whether or not the plaintiff made it appear to the court that his neglect to bring the action to trial had not been unreasonable, for where that is made to appear the court may permit the and 132 New York State Reporter plaintiff on such terms as may be just to bring the action to trial. Rule 36, General Rules of Practice. The plaintiff as an excuse stated that as the defendants had alleged in their answer that another action was pending on behalf of the plaintiff to recover for such injury, the plaintiff's attorney could not properly notice the case for trial until the other action was disposed of. This does not follow. No reason is disclosed why the former action could not have been discontinued or disposed of at any time. Certainly the fact that the defendant has a good defense to the action is no reason why the plaintiff should delay for five years in noticing his case for trial and place it on the calendar. Nor does it appear that this other action has now been disposed of, or that the plaintiff is in any different situation from that which he was in at the time the case was at issue. The plaintiff also stated that, owing to his impoverished condition, he was unable to pay to his attorney the necessary disbursements. The amount required to place the case upon the calendar is so insignificant that this would not seem to be an excuse. Under rule 36 it is only when it is made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable that the court is justified in denying the defendant's motion and in allowing the plaintiff to try the case. It does not appear that the neglect of the plaintiff to bring the action to trial has not been unreasonable. If this motion had been made by the defendant before the plaintiff had noticed the case and placed it upon the calendar, I should think that upon these papers the defendant was entitled to the order. See Seymour v. Lake Shore & M. S. R. R. Co., 12 App. Div. 300, 42 N. Y. Supp. 92. The defendant, however, has waited until after the plaintiff has noticed the case and put it on the calendar, and this fact can be considered by the court in determining whether the motion should or should not have been granted. It seems that the plaintiff has been guilty of neglect in prosecuting the action. We think, however, that under all the circumstances the plaintiff should have an opportunity of trying his case. It should, however, only be upon condition that the plaintiff pay to the defendant $10 costs of opposing the motion and stipulating to try the case when reached without further delay. The order appealed from should therefore be modified accordingly, with $10 costs and disbursements to the defendant to abide the result of the action. All concur. (111 App. Div. 875) HUNTINGTON v. HERRMAN et al. (Supreme Court, Appellate Division, First Department. March 16, 1906.) 1. TROVER AND, CONVERSION-PROOF AND VARIANCE. Under a complaint for conversion, no recovery can be had on any cause of action ex contractu. 2. SAME-ELEMENTS OF ACTION-EXERCISE OF DOMINION. Where plaintiff left property in defendants' building under an agreement that it should be removed on notice if the building was leased, and defendant leased the building to a tenant who removed the property, defendant was not liable for conversion thereof. [Ed. Note. For cases in point, see vol. 47, Cent. Dig. Trover and Conversion, §§ 25-37.] Appeal from Trial Term, New York County. Action by Byron O. Huntington against Morris S. Herrman and others. From a judgment for defendants, plaintiff appeals. Affirmed. Argued before O'BRIEN, P. J., and MCLAUGHLIN, INGRAHAM, LAUGHLIN, and HOUGHTON, JJ. James F. O'Neill, for appellant. Benjamin N. Cardozo, for respondents. LAUGHLIN, J. The action is for the conversion of five sewing machines, certain office fixtures and furniture, and other personal property, of the alleged value of $8,500. During a period of about two years prior to the 1st day of February, 1898, plaintiff conducted the business of manufacturing ladies' underwear in the third loft of premises Nos. 68 and 70 Grand street, New York, under a lease from the Merchants' Central Club. The defendant Herrman then became owner, or succeeded to the right to possession, of the premises, and he leased the loft to the plaintiff for the month of February for a rental of $50. Plaintiff was closing out his business, but had not finished doing so by the 1st of March, and desired to continue in possession for two months longer, and to leave the property, to recover for which the action is brought, until the premises should be again rented by his new landlord. On or prior to the 1st day of March, he informed Herrman's brother that he desired the privilege of keeping the property there until the loft was rented and was willing to pay for the privilege $25 per month for the months of March and April, and was informed that there would be no objection to his leaving the property there, provided he agreed to remove it within two days after being notified that the building had been rented. The rental was subsequently changed to $50 for March and $25 for April. The respondent's brother then suggested that appellant, when ready to move his other things. out, send word so that a memorandum could be made of the property he desired to leave. Plaintiff paid the rent for the two months, and some time after the last payment, which was on April 11th, he moved out, leaving the property of which a memorandum was taken-but no receipt was given-together with his address at which he might be reached "if the goods were to be removed." The plaintiff subsequently -it does not appear just when-received notice from the respondent that the loft had been rented and requesting that he remove his signs and put them on the first floor, so that the new tenant could put out signs. This request was complied with, and while doing so plaintiff was informed by the elevator boy that it would be necessary also to move the other property, and that it might be placed in the first loft. After some negotiations, it was agreed that appellant and respondent should together bear the expense of cleaning the first loft to put in suitable condition to leave the property there, and this was done, and the property was transferred accordingly. The plaintiff thereafter, from time to time, visited the premises for the purpose of seeing his property, to which he was given access. In December, 1899, plaintiff learned that his property was being removed, and on visiting the premises he found it on the sidewalk, where it had been placed by the elevator boy on orders from the defendant Stein, to whom Herrman had in July or 98 N.Y.S.-4 |