Surrogate's Court, Oneida County, May, 1908. [Vol. 59. Before the referee, the jurisdiction of the Surrogate's Court to abrogate an order of adoption made by the county judge was not challenged. The most claimed by those interested in sustaining the relation of parent and child was that the proceedings before the county judge could not be attacked collaterally. I have concluded that the Surrogate's Court is without jurisdiction to review adoption proceedings had before the county judge, pursuant to the provisions of the Domestic Relations Law, either collaterally or directly. Since the enactment of the Domestic Relations Law, the surrogate and county judge have concurrent jurisdiction over adoption proceedings; prior thereto the surrogate had no such jurisdiction. The judge or surrogate applied to may, in the exercise of his discretion, make an order allowing and confirming said adoption, reciting therein his reasons therefor. Discretionary power is clearly given by section 63 of the Domestic Relations Law, which provides: "If satisfied that the moral and temporal interest of the child will be promoted thereby, the judge or surrogate must make an order, allowing and confirming said adoption, reciting the reasons therefor, and directing that the minor shall thenceforth be regarded and treated as the child of the foster-parent or parents." The words "If satisfied," at the beginning of this section, are a clear grant of discretionary power. When a judge, in the exercise of his discretion, grants an order allowing and confirming an adoption, it should not be abrogated by a judge or court of co-ordinate jurisdiction, except, possibly, in cases of fraud. On this subject, in Corbin v. Casina Land Co., 26 App. Div. 410, the court said: The exercise, however, by one judge of authority in review of the discretion exercised by another, to the extent of vacating the orders and determinations of the latter, is of such doubtful propriety as to have been uniformly denied whenever the question has arisen; it is fraught with consequences that may be serious, imperils the stability of an orderly course of procedure in the administration of justice, and is Misc.] Surrogate's Court, Oneida County, May, 1908. destructive of the dignity and decorum which should attend upon judicial determination." In adoption proceedings, the surrogate and county judge occupy precisely the same relations as do justices of the Supreme Court, so far as their respective orders are concerned. In the Supreme Court, if an order is erroneously made, the remedy given for its correction is by appeal to the Appellate Division, as provided by the Code of Civil Procedure. An application to set aside, or modify, such an order, made to a court presided over by another justice than the one directing the order, would be practically an appeal from one co-ordinate court to another; a procedure not provided for in the system of practice now prevailing in, and governing, the courts of this State. Section 772 of the Code of Civil Procedure points out the exceptions to this rule. The rule is concisely and accurately stated in Fisher v. Hepburn, 48 N. Y. 41, to wit: "It would be a very unwise. administration of justice and lead to much vexatious litigation if a judge holding one Special Term could, upon mere motion, set aside the decision and judgment of another judge at Special Term upon allegations that the latter had erred as to any of the questions submitted for his determination." For a full discussion of the rule, see People v. National Trust Co., 31 Hun, 20. To give to a judge statutory power to create, in his discretion, the sacred relation of parent and child, and to a surrogate of concurrent jurisdiction, who has never seen or examined the parties involved, the power to destroy or affirm. such relation, on the theory that the next of kin of the deceased can force it upon the consideration of the Surrogate's Court to be disposed of before a decree of distribution can be made, was not, in my judgment, intended by the Legislature when it passed the Domestic Relations Law. It contains no provision from which such authority can be inferred. In Matter of Trimm, 30 Misc. Rep. 493, the court said. upon this subject: "While the law always requires the sanction of a court to create or destroy such status, it never could have been intended that the county judge should sit County Court, Saratoga County, May, 1908. [Vol. 59. as a court of appeals on the judgment of the surrogate, or that the Surrogate's Court should sit in that capacity on the judgment of the county judge." The statute itself grants no such power. The authority last cited is also to the effect that, while the jurisdiction of the county judge and Surrogate's Court is concurrent, under the Domestic Relations Law the power to abrogate an order of adoption does not rest in a court other than that which granted it. Sections 66, 67 and 68 of the Domestic Relations Law clearly prescribe the only means by which the relation of parent and child formed under this statute can be abrogated or destroyed. There is no authority under this statute, if I correctly read it, which would enable the next of kin of the deceased to directly attack the adoption proceedings under consideration. The statute furnishes relief only to those directly involved. If a direct attack upon the adoption proceedings is not authorized by the statute, I am unable to understand on what theory a collateral attack can be sustained. If the foregoing views are correct, it follows that the referee's report herein should be, and is, affirmed. Decreed accordingly. FRANK M. STARBUCK, Trustee of DE GARMO & STARKS, Bankrupts, Respondent, v. ALBERT N. GEBO, Appellant.* (Saratoga County Court, May, 1908.) Justices of the peace―Jurisdiction — Actions in equity — To recover illegal preference by bankrupt. Equity Nature and grounds of jurisdiction · · Distinction between legal and equitable causes of action - Equitable causes of action — To recover illegal preference by bankrupt. An action by a trustee in bankruptcy to recover from a creditor of the bankrupt the proceeds of the bankrupt's property sold under an execution upon a judgment recovered by the creditor against the bankrupt, on the ground that the creditor thereby acquired ar See Starbuck v. Gebo, 48 Misc. Rep. 333. an Misc.] County Court, Saratoga County, May, 1908. illegal preference over other creditors, is an action in equity of which a justice's court has no jurisdiction. APPEAL from a judgment of a justice's court. The opinion states the case. James H. Bain, for respondent. A. & L. Armstrong, for appellant. ROCKWOOD, J. On July 29, 1903, the defendant, Albert N. Gebo, recovered a judgment in justice's court against De Garmo & Starks, copartners trading at South Glens Falls, N. Y. An execution was issued on the same day and levied upon personal property of the judgment debtors. On August fourth this property was sold and the avails paid over to the defendant, who applied the same upon the judg ment debt. On August 17, 1903, De Garmo & Starks filed a voluntary petition in bankruptcy; and, having been duly adjudicated to be bankrupts, the plaintiff, Frank M. Starbuck, was appointed trustee and qualified as such. Thereupon the trustee made a written demand for the proceeds realized by the defendant from the sale of the property of De Garmo & Starks by virtue of the execution, claiming that the defendant, when he caused the property to be sold, well knew that De Garmo & Starks were insolvent and that his action had given him an illegal preference over other creditors. The defendant refused to pay over the proceeds of the sale, and the plaintiff as trustee instituted this action in a justice's court to recover a money judgment for the amount which had been realized from the sale of the property on execution. The plaintiff recovered judgment and defendant appealed to this court for a new trial, urging, as the principal reason for a reversal of the judgment, that the action is in equity and that the justice of the peace was without jurisdiction of the subject-matter involved. The interesting question is, therefore, presented: Has a justice of the peace jurisdiction of an action brought by a trustee in bankruptcy to recover the proceeds of a preference obtained by a creditor of the bankrupt through the use of legal process? County Court, Saratoga County, May, 1908. [Vol. 59. Section 60 of the National Bankruptcy Act of 1898, as amended, subdivision a, prohibits a person who is insolvent from procuring or suffering a judgment to be entered against himself in favor of any person, if the effect thereof shall be to create a preferential transfer of the bankrupt's property. Subdivision b of the same section declares such preference to be voidable by the trustee who "may recover the property or the value thereof, and," the section continues, "for the purpose of such recovery any court of bankruptcy, as hereinbefore defined, and any State court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction." "Suits by the Subdivision b of section 23 provides: trustee shall only be brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant, except suits for the recov ery of property under section sixty, subdivision b, and section. sixty-seven, subdivision c." Prior to the institution of this action the plaintiff presented his petition to the referee in bankruptcy before whom the bankruptcy proceeding was pending, and procured an order granting leave to said trustee "to bring an action or actions against said Albert N. Gebo to recover the property mentioned in said petition." This order, however, does not specify the court in which the action shall be brought. By section 70 of the Bankruptcy Act of 1898 the trustee is vested with the title of the bankrupt to his estate, so that in form and effect this action is for money had and received, of which a justice of the peace would ordinarily have jurisdiction. If the action is in equity then, concededly, the justice of the peace was without jurisdiction; for such officer is not vested with general common-law powers, but has only a limited statutory authority. It is claimed that the courts of this State are not in entire accord upon the subject presented by this appeal; but, from an examination of the authorities, a rule is deducible wholly consonant with prece |