As the defendant has settled its account as executor and the property which plaintiff seeks to reach in this action is held by the defendant as trustee, and plaintiff is suing not as one interested in the trust but on the ground that the property belongs to him personally and should not be in the trust, it is doubtful that the Surrogate’s Court would have jurisdiction of the action. Therefore, the Supreme Court should retain the jurisdiction which it undoubtedly has over such an action.
*1004The judgment should he reversed, with costs to. the appellant, and the motion denied, with leave to the defendant to answer within ten days after service of order with notice of entry, on payment of said costs.
Martin, P. J., Townley, Glennon, Callahan and Peck, JJ„ concur.
Judgment unanimously reversed, with costs to the appellant, and the motion denied, with leave to the defendant to answer within ten days after service of a copy of order, with notice of entry, thereof, on payment of said costs.