2 Rob. 556 | The Superior Court of New York City | 1864
By the Court,
The bond in suit in this case being to the people of the state, no action could be brought upon it, at law, as a bond, except when authorized by such obligees, in other words, by statute, or equivalent authority. In a proper equitable case an action might, perhaps, be maintained upon it as a stipulation or judicial recognizance, (Carow v. Mowatt, 2 Edw. Ch. 57,) but then only by the officer in whose hands it is deposited. (Bolton v. Powell, 14 Beav. 275. 2 De G., M. & G. 1.) Although even that has been doubted. (14 Beav. 290, 291.) The complaint in this action, however, shows only the case of a revocation of the letters of administration of the defendant Kerr, (without stating the cause,) a decree against him on an alleged final accounting, and the
It would seem that before the passage of the Revised Statutes, an action could be brought upon such a bond whenever any of its conditions were violated, by parties prejudiced thereby, (People v. Dunlap, 13 John. 437,) but only in the name of the people. The first question that presents itself, therefore, is, whether the plaintiff can bring an action in his own name, under the Code, on such bond, as the real party in interest. (§§ 111, 113.) The former mode of entering up judgment in a suit on a bond, for the penalty, in case of a breach, to stand as security for future breaches, being abolished, it is difficult to say how the sureties can avail themselves, in future actions for breaches of such bond, of their payment of any money recovered by the present plaintiff in this. It would seem, therefore, that the action should have been brought in the name of the people, so as to make the parties in each successive action the same, unless by statute or a surrogate’s decree the plaintiff acquired such an interest in the bond, as to entitle him to bring an action in his own name.
The statutes of this state have, however, provided for every contingency in which it might be necessary to prosecute an administrator’s bond, and regulated the prior steps for instituting an action thereon. The mere fact of so prescribing cases for such prosecution would seem, by implication, to deny the right in all others. Unless the provision of the Revised Statutes which gives to letters of administration, issued after the revocation of prior ones for the evasion by the administrator of personal service of a summons to render an account, or his remaining imprisoned a certain time for not doing so, (2 R. S. 92, § 53,) the like effect as it gives to those issued after a like revocation for. omitting to file an inventory or avoiding service of a summons to compel it, also thereby gives the right of
This case does not come within the statute of 1830, before, cited, because the decrees therein specified are only those upon rendering an account, a final settlement, or for a debt, legacy or distributive share. And although a substituted administrator may call his predecessor to account, (2 R. S. 95, § 68, extended by statute of 1837, ch. 460, § 36,) yet such accounting is expressly excepted from the cases itít which a surrogate is required to decree payment and distribution of assets on hand, (id. § 71,) and appears to be only a means of discovery of the disposition of the assets, as in case of a creditor, (id. § 86, 2 R. S. 92, § 54,) and merely auxiliary to some future proceeding, either by action on.the bond or a new application under the Revised Statutes, (vol. 2,p. 92, § 52,) by parties interested, for a final account. Unless, therefore, the surrogate derived his authority to decree a payment by the defendant Kerr of the assets in his hands to the plaintiff from some other source than the right of the latter to an account, the decree was extra .jurisdictional. Such case is in that event equally without the statute of 1837. The sureties can only be made liable for the disobedience of the administrator to lawful orders of the surrogate.
But if the bond in this case could legally be prosecuted, .the .next question which arises is, whether the plaintiff could prosecute it in his own name. That he could only do by some common law or statutory right, or the creation of an interest in him, either by the surrogate’s decree or otherwise, entitling him to administer or retain the amount recovered. (Code, § 111.) I have already shown he had no such right, and the assignment spoken of in the statute of 1837, could not have been intended to divest the people of the state of the ownership of such bond, but only gives a right of sueing thereon.' The creation of such interest depends entirely upon the decree in question legally bringing this case within the statute of' 1837, as one for the payment of money. The validity of that decree, therefore, necessarily becomes a matter of inquiry. ■ It
The jurisdiction of the surrogate’s court,- which is a creature of statutes, is essentially special and limited’ both in the subjects over which it is exercised and the mode of its exercise, when that is prescribed. (Sheldon v. Wright, 5 N. Y. Rep. 497; S. C. 7 Barb. 39. People v. Barnes, 12 Wend. 492. Corwin v. Merritt, 3 Barb. 341. Paff v. Kinney, 1 Bradf. 1. Cleveland v. Whiton, 31 Barb. 544. Farnsworth v. Oliphant, 19 id. 30.) And that, too, notwithstanding the restriction upon the exercise of incidental powers imposed by the Revised Statutes (2 R. S. 221, § 1,) has been removed. (Laws of 1837, ch. 460, § 71. Sipperly v. Baucus, 24 N. Y. Rep. 46.) It is only, therefore, in case of the enforcement of the delivery by a removed administrator of assets in his hands to his successor, being either a specially delegated power of a surrogate, or necessarily incidental to one, that he would have jurisdiction to make a decree such as that in question, so as to bind sureties on the bond.
The Revised Statutes confer on the courts held by surrogates judicial power over eight enumerated subjects, which they declare are to be exercised in the cases and manner prescribed by
The enforcement of the delivery by a removed administrator to his successor, of assets in his hands, cannot be said to be incidental to any of such enumerated powers. Such delivery would not facilitate, but if any thing rather impede, the payment of debts and legacies, or a distribution while yet unacertained. If decreed, any payment of them could only be partial and inconsistent with a final accounting on the application of other parties interested. It would be unjust to deprive executors or administrators of their commissions when removed for no fault, but at the will of their sureties, (Laws of 1837, ch. 460, §§ 29, 32, 33 ;) and it would be equally unjust to deprive their successors of commissions for taking charge of the
If the account rendered by the defendant Kerr had been a final accounting, as it might have been, if it had been made upon his application, (2 R. S. 95, § 69,) it would only have been conclusive of four facts, (2 R. S. 94, § 65,) to wit: 1. The correctness of the charges in it for moneys paid to creditors, legatees and next of kin, and for necessary expenses. 2. The extent of the liability of such defendant for interest. 3. The limit of the ability to collect debts stated in such account. 4. The correctness of the allowances for decrease and charges for increase in value of assets. As these are mostly in favor of the accounting party, it is evident that, for other purposes,
Even, therefore, if the bond could have been prosecuted, and by the plaintiff in his own name, I am satisfied it was error not to have dismissed the complaint for want of sufficient evidence of the amount for which the defendant Kerr was responsible, and that evidence of payments by him to the next of kin, and losses of money, should have been admitted.; also, that the defendant" Kerr was entitled to his wife’s share. For these reasons, independently of the right to prosecute the bond, or bring the action in the plaintiff’s name, I think there should be a new trial, with costs to abide the event. The plaintiff will then have an opportunity to apply to amend his com.plaint, if so advised, so as to make the case one of equitable cognizance, if it can be made so.
The judgment must therefore be reversed, and a new trial had, with costs to abide the event.
) The judgment in this case was affirmed in the Court of Appeals, (35 N. Y. Rep. 256.)