In re the Second Intermediate Accounting of Rodormer , 277 A.D.2d 1091 ( 1950 )

Decree insofar as it dismisses the answer of the appellants and grants summary judgment in favor of the petitioners, reversed on the law and facts and matter remitted to the Surrogate’s Court for further proceedings in accordance with the memorandum; otherwise decree affirmed, with costs of this appeal to the appellants payable out of the estate. Memorandum: The issue as to the validity of appellants’ claim to income for the period September 13, 1945, to April 12, 3 946, is apparently awaiting trial in the pending accounting proceedings. It is only incidentally involved in this proceeding as an element bearing upon the discretion of the Surrogate to grant or withhold the relief sought herein. As we read appellants’ answer and the prayer for relief it does not set forth a counterclaim, nor does it ask for an adjudication here on the merits of the claim in question. It alleges the fact that the claim is pending in the accounting proceedings and prays that no distribution be made until the claim is determined, etc. Accordingly we do not regard the motion to strike out the answer and for summary judgment as authorized under rule 113 of the Rules of Civil Practice. In any event a decree should not be entered in this proceeding which summarily disposes of the issue pending in the accounting proceedings unless it clearly appears from all the papers that the pending claim is so entirely without merit that there is nothing to litigate there. We cannot say from this record that appellants’ claim is without merit as a matter of law. All concur. (The appeal is from a decree granting summary judgment on a motion by the special guardian and the- trustees, directing payments of the one-third share held for the benefit of E. Wells Edwards.) Present — McCurn, Vaughan, Kim-ball and Piper, JJ.