The Appellate Division, having reached the conclusion that the commencement of this suit was an offense against orderly judicial procedure, held properly, in my view, that the trial court should have refused to take jurisdiction, and it necessarily follows that the discretion which the trial court could have exercised the Appellate Division of that court might exercise, and in this case properly did exercise.
If I am right in the proposition that the Supreme Court had, in view of the proceedings pending in another court involving the same questions, the right to refuse jurisdiction in its discretion, then it also follows that this court is without power to review that exercise of discretion.
Before the commencement of this action the powers of the Surrogate's Court of Westchester county had, by these plaintiffs, been invoked to pass upon questions affecting the administration of the estate, and the Surrogate's Court seems to have in the meantime made such decrees as were in the main satisfactory to the plaintiffs here, the petitioners there; but the trustees were aggrieved, and so an appeal from one of the decrees was taken to the second Appellate Division (Matter of Westerfield, 32 App. Div. 324), where a reversal was secured in two respects, one of which relates to an item referred to infra.
The action of the surrogate on the next hearing seems not to have been satisfactory for his decree was again reversed. (Matter of Westerfield, 40 App. Div. 610.)
A further hearing was had and the surrogate's decree thereon *Page 245 was for the third time reversed. (Matter of Westerfield,48 App. Div. 542.) After this the Appellate Division certified certain questions and authorized an appeal to this court, but we refused to consider the case on the ground that the reversal was upon questions of fact as well as law, and that answers to the questions certified depended upon facts established by the evidence from which different inferences might have been drawn, and so we dismissed the appeal.
The indications are that the controversy in the Surrogate's Court was as bitterly contested as the trial in the Supreme Court. There are some questions which the learned referee in this case undertook to pass upon as original propositions, just as if no court having jurisdiction of the subject-matter had ever decided them, but which it is now conceded were res adjudicata. Indeed, the majority opinion, while indicating a tendency to differ with the decision of the second Appellate Division on the appeal from the surrogate's decree as to the item of $131,778.53, nevertheless says, "We think, therefore, that the Surrogate's Court having acquired jurisdiction of this controversy prior to the commencement of this action, the determination of the Appellate Division reversing the decision of the surrogate becameres adjudicata and was binding upon the Supreme Court and the referee in the trial of this action." But the referee, clothed for the time being with the authority of the Supreme Court, disregarded not only the decrees of the Surrogate's Court, but the several reviews thereof by the second Appellate Division and marshaled the facts in carefully prepared findings, as if no proceedings had ever been had in a court having jurisdiction to pass upon most of the questions brought to his attention upon the hearing.
An examination of the decisions and the opinions in the Surrogate's Court and the Appellate Divisions indicates that these plaintiffs were, in those proceedings, far more successful in Surrogate's Court than at the Appellate Division. Indeed, those two courts differ as to the large item above mentioned. And it may well be that the second Appellate Division's position *Page 246 on that item led the plaintiffs to press this suit for trial and final determination in the city of New York, thus enabling them to have the questions of fact reviewed by another branch of the Appellate Division, in the hope that it might take a view of the facts — which are strongly in controversy — more favorable to plaintiffs.
Confronted with this situation, the first Appellate Division proceeded to a careful review of the facts for the purpose of ascertaining whether it was the duty of the trial court to have refused to entertain jurisdiction of the suit, and to have dismissed it. And, having reached the conclusion that whether it should be dismissed or not rested in the exercise of the sound discretion of the Supreme Court, it determined that under the peculiar facts of this case that discretion should have been exercised by the dismissal of the complaint, and thereupon it exercised that discretion of the Supreme Court, as it rightfully might. In support of the position taken it marshaled the facts and cited authorities in the Supreme Court and in this court so carefully in its opinion that nothing can now be advantageously added, and I rest my position — that the Appellate Division had the power to reverse the judgment and dismiss the complaint, on the ground that the Supreme Court ought not, under the circumstances, to have taken jurisdiction of this suit — upon the opinion below.
My attention has not been called to any answer to the assertion by the court below that the power rested in the Supreme Court in the exercise of a sound discretion to refuse to take jurisdiction of this suit, in view of the fact that nearly — if not quite all — of the questions were already in controversy in another court; and it is safe to assume, I think, in view of the decision by this court on that subject, that no answer can be made to it. Hence it would seem to follow that there is no question in this case which this court can review, for it has been held again and again that it has not the power to review an exercise of discretion committed to the Supreme Court after its exercise by that court. Indeed, it has never been held otherwise. *Page 247
If the views so far expressed be sound, it follows that the discussion of the merits should await the appeal to this court from an order of the second Appellate Division either affirming the final decree of the Surrogate's Court, or reversing it upon the law.
The judgment should be affirmed.
GRAY, O'BRIEN and BARTLETT, JJ., concur with HAIGHT, J.; PARKER, Ch. J., reads dissenting opinion; CULLEN and WERNER, JJ., absent.
Judgment reversed, etc.