It is quite clear and is conceded that the respondent Laura McDonald Stallo instituted on sufficient charges properly presented (See Matter of McDonald, 160 App. Div. 86; affd., 211 N. Y. 272) a proceeding in the Surrogate’s Court, in which *646the appellant was appointed administrator of the estate of Alexander McDonald, deceased, for the removal of appellant as such administrator, and that the Surrogate’s Court has sole and exclusive authority to determine such charges and to remove the administrators.
The administrator sought by an application for an injunction in this action to restrain said respondent from prosecuting the proceeding in the Surrogate’s Court,.pending this action, which would enable it to remain in charge of this action as administrator, and to so mold and present the same as to further its individual interest as a creditor of McDonald at the expense of his estate, for it brings the action in the dual capacity for itself and as representing the estate, and in both capacities is asking the court to ratify and confirm its acts upon which the charges for its removal are predicated. When in Matter of McDonald (supra) this court and the Court of Appeals remitted the matter to the Surrogate’s Court to proceed with the charges it appeared quite as fully as now that the alleged acts of misconduct and of hostility to the estate on the part of the administrator had been performed, and that the administrator was able financially to answer to those interested in the estate, and if that were a sufficient reason for not removing the administrator there would have been no occasion for ordering the charges heard. Moreover, it now further appears that the administrator in bringing this action for the judicial approval of its alleged acts of misconduct is further proceeding in hostility to the interests of the estate which constitutes further ground for its removal. (See Lichtenberg v. Herdtfelder, 103 N. Y. 302; Matter of West, 40 Hun, 291; affd., 111 N. Y. 687; Matter of Gleason, 17 Misc. Rep. 510. See, also, Pyle v. Pyle, 137 App. Div. 568; affd., 199 N. Y. 538.) In Matter of Moulton (32 N. Y. St. Repr. 631) the Surrogate’s Court in the exercise of its discretion had refused to revoke the letters of administration, and the order was affirmed on the ground that the facts disclosed did not as matter of law require the removal of the administrator, and that the judicial discretion had not been improperly exercised. By appeahng from the order denying the motion, the appellant is now asking this court, which has no jurisdiction to hear such charges or to remove an admin*647istrator, in effect to enjoin the Surrogate’s Court from exercising its statutory functions in performing its statutory duties, notwithstanding the charges, which if true show that the administrator has violated its trust and that its interests are diametrically opposed to those of the estate and that it should be removed at once in order to permit a disinterested representative to take charge of the interests of the estate involved in, or that may be affected by, the action. It is no answer to this contention to say that those interested in the estate are parties defendant herein and may thus, in representing themselves, indirectly protect the estate, for the Surrogate’s Court may well deem that they are entitled to have the estate represented by a disinterested administrator and to have the expenditures made by it in prosecuting or defending actions inure to the benefit of the estate and not to its individual advantage and to the detriment of the estate.
If, in the circumstances of this case, it he within the jurisdiction of the Supreme Court thus indirectly to enjoin the proceeding in the Surrogate’s Court, I think it would be an undue exercise of jurisdiction to do so, for the basis required to be shown by the provisions of section 604 of the Code of Civil Procedure for granting such relief does not exist here. The case here presented is one in which said respondent might well have asked for a stay of proceedings in this action until the determination of her application for the removal of the administrator. It is, of course, competent for a court of general jurisdiction to enjoin proceedings in a court of concurrent jurisdiction, where the issues are the same and'may all be determined in the court of general jurisdiction; but there is, I think, no precedent for issuing an injunction in an action pending in a court of general jurisdiction, in effect, enjoining proceedings in an action or proceeding in another court having exclusive jurisdiction of the subject-matter sought to be restrained, and if it be within the jurisdiction of the Supreme Court to so extend the doctrine, I think it should not be done, for no emergency requires it. (See Paxton v. Patterson, 26 Abb. N. C. 389; Savage v. Allen, 54 N. Y. 458; Hamilton v. Cutting, 60 App. Div. 293; Wallack v. Society, etc., 67 N. Y. 23; Norfolk & New Brunswick Hosiery Co. v. Arnold, 143 id. *648265; Edgell v. Clarke, 19 App. Div. 199.) It may be said that the appellant is not asking that the proceeding in the Surrogate’s Court be enjoined, and that there is no attempt to prevent that court from exercising its statutory functions. But if the petitioner in that proceeding be enjoined from prosecuting it, that enjoins the proceeding as effectually as if the injunction ran against the court. The learned counsel for the appellant contends that the issues arising on the charges against it in the Surrogate’s Court are in part the same as those which will arise herein, and that if the proceeding for the removal of the administrator be not enjoined, findings may be made therein that will be binding herein. The learned counsel for the respondents claims that none of the issues will be the same, and that no finding in the proceeding for the removal of the administrator will be conclusive on any fact. It is unnecessary to consider the merits of the respective contentions on that point, for I regard it as immaterial to the decision of the question now presented. There is no presumption that the Surrogate’s Court, in so far as it is authorized to determine questions of fact, is not as competent to do so as any other court. If, however, the appellant prefers to be assured that none of the questions of fact in this action involved herein shall be determined in the Surrogate’s Court, it has only to resign as administrator to accomplish that result, and if it shall so resign, I think its successor should be enjoined, pending this action, from requiring it to. account, at least with respect to any matters at issue or involved herein, or during the pendency of any other action brought in a court of competent jurisdiction to determine them, for manifestly the Surrogate’s Court has not jurisdiction to decide such issues, and they must be decided before there can be a final accounting by the administrator.
I, therefore, vote for affirmance.
McLaughlin, J., concurred.
Orders reversed, with ten dollars costs and disbursements; motion to vacate temporary injunction denied, and motion for injunction pendente lite granted, with ten dollars costs.