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Furthermore, the mere fact that the neighborhood has changed from a farm to a residential section cannot alter the rights of the Purdy family in this burying ground. It is true that the public authorities may for sanitary reasons compel the discontinuance of a burial ground and compel the removal of the remains interred therein, but I know of no case where, for mere commercial reasons and because the existence of the burying ground is a detriment to the surrounding property and injures its value, it has been held that parties holding mere private interests in the land might compel the discontinuance of the burial ground as against those having and asserting rights of burial therein, either by the mere act of the removal of the bodies or by any legal proceeding.

If partition can be maintained in this case, it is equally applicable to any private burial ground, the fee of which is held by tenants in common, whether presently used as such or otherwise. I do not think that the courts can determine as against rights asserted by those entitled to use the burial ground for burial purposes just when or under what circumstances an abandonment is shown. This burial easement is clearly a matter of right and does not rest in the discretion of a court of equity. If the right remains and is asserted, there can be no abandonment.

I conclude therefore that this court has no power to direct the sale of these lands free from the easement of burial. While the plaintiff may have partition, or a sale if that cannot be done without prejudice, such partition or sale must be subject to the right of burial vested in the members of the Purdy family.

Ordered accordingly.

v. Locust BUILDING

County Court, Queens County, January, 1918. (Vol. 102.

SAMUEL ERTRACHTER, Plaintiff, v. Locust BUILDING

COMPANY, BETA BUILDING Co., Inc., et al., Defendants.

(County Court, Queens County, January, 1918.)

Jurisdiction - of County Courts to set aside certain transfers of real estate — fraud — receivers — accounting.

The County Court has not jurisdiction, even by consent of the parties, of an action to set aside certain transfers of real estate alleged to have been made in fraud of creditors, where the plaintiff asks for the appointment of a receiver and for an accounting of moneys and the judgment sought will not affect all of the defendants in the same way.

ACTION to set aside certain transfers of real estate.

Herbert A. O'Brien, for plaintiff.

Austin & McKown, for defendant Beta Building Co., Inc.

SMITH, J. The plaintiff in this action, a judgment creditor of the Locust Building Company, seeks to set aside certain transfers of real estate by the Locust Building Company alleged to have been made in fraud of creditors. The plaintiff also asks for the appointment of a receiver and for an accounting of moneys. The relief prayed for by the plaintiff against the different defendants differs materially. That is to say, the judgment sought would not affect all of the defendants in the same way. In fact, it is difficult to see from the complaint how by one judgment it would be possible to determine all the issues.

The defendant Beta Building Co., Inc. demurred to the complaint on the ground that causes of action have been improperly united and by stipulation be

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County Court, Queens County, January, 1918.

tween the attorneys for the plaintiff and the attorneys for the defendant Beta Building Co., Inc. the matter was referred to me for decision upon the demurrer.

The action is purely an action in equity and before considering the question raised by the demurrer we must dispose of a very important question as to the jurisdiction of this court. The County Court is a court of limited jurisdiction and has no equity jurisdiction except such as is provided in special cases in the Code, that is to say, in an action to foreclose a mortgage or partition of real estate and then only where the equitable relief is incident to the foreclosure or partition of real estate. A determination of the issues raised by the complaint would involve the question of title to real estate. This court has no jurisdiction in actions to determine the title to real estate except where such questions arise as incident to a foreclosure or partition of real estate. Wilkins v. Williams, 3 N. Y. Supp. 897. The parties to this action cannot by consent confer jurisdiction of the subject matter in litigation upon the court, it being a court of limited jurisdiction. Albany Brewing Co. v. Barckley, 70 App. Div. 260.

Section 340 of the Code of Civil Procedure is very specific and clear in specifying the kind and character of actions of which the County Court has jurisdiction. I find no provision, however, in that section or elsewhere which authorizes this court to take jurisdiction of the subject matter of this action. It is therefore obvious that the court cannot pass upon the demurrer and must dismiss the complaint.

Judgment accordingly.

24

Surrogate's Court, Madison County, January, 1918. (Vol. 102.

Matter of the Estate of ELIZABETH S. Eaton, Deceased.

In re Petition of Willis L. WATKINS for Ancillary Administration.

(Surrogate's Court, Madison County, January, 1918.) Wills — probate of - codicils — executors and administrators - Surro

gate's Court - when application for ancillary letters of administration denied — Code Civ. Pro. § 2629.

A will executed in the state of New York and a codicil thereto executed in the state of Michigan, where testatrix resided at the time of her death, were, after a contest, duly admitted to probate in the state of New York, and an account by the executrix of the executor of his proceedings under the will was duly approved and settled by the surrogate and letters of administration with the will annexed issued. Although exemplified copies of both the will and the codicil were offered and used in a probate proceeding instituted in the state of Michigan during the pendency of the first probate proceeding the will alone was admitted to probate and letters of administration with the will annexed granted to the petitioner herein. Upon his application for ancillary letters of administration it appeared that no appeal was ever taken from the decree of probate made by the Surrogate's Court in this state; that the changes made in the codicil not only affected the rights of certain persons but also the rights of all the residuary legatees; that the most important difference between the combined will and codicil as probated here and the will as probated in the sister state grows out of the provisions of the codicil for the support, care and maintenance of the mute brother of the testatrix. Held, that so far as property in this state was concerned the will with the codicil was the real will and not the will probated without the codicil and the application should be denied.

That while it might conform to the letter of section 2629 of the Code of Civil Procedure to grant the ancillary letters of administration prayed for, it would violate its spirit and be an idle ceremony.

APPLICATION for ancillary letters of administration.

Misc.] Surrogate's Court, Madison County, January, 1918.

John A. Johnson (A. F. Freeman and B. M. Thompson, of counsel), for Willis L. Watkins, petitioner.

Carlos J. Coleman, for Emma A. Storms, administratrix C. T. A. of Elizabeth S. Eaton, deceased.

Frank E. Jones, in person and as special guardian and committee of George Albert Storms, an incompetent.

SENN, S. This is an application by Willis L. Watkins, as administrator with the will annexed, of the last will and testament of Elizabeth S. Eaton, deceased, for ancillary letters of administration in Madison county, based upon the probate of said will in the state of Michigan, petitioner having been appointed such administrator with the will annexed under the Michigan probate.

The legal propositions involved in the administration of this estate have come to the present surrogate as a kind of legacy, at least they have existed during the terms of two former surrogates and had numerous days in court. In addition, the conflicting contentions of the various parties in interest have been in the federal courts enough times so that they appear in at least six reported federal cases. With the various proceedings in Madison county Surrogate's Court, and appeals therefrom, the certified and exemplified proceedings in the Michigan courts filed here and the various decisions of the federal courts filed in this office, — there is an accumulation of petitions, orders, decrees, decisions, exhibits, letters and other papers too numerous to mention, of such volume and magnitude that, if they do not actually rival those portrayed by Dickens in Jarndyce and Jarndyce, they at least serve to mitigate the author's evident exaggeration.

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