Betts v. Avery, 61 N.Y.S. 525

Betts v. Avery

61 N.Y.S. 525 | N.Y. App. Div. | 1899

HERRICK, J.

This is an action against the sureties upon tjie bond of an administrator. The extent of the liability of such sureties has

*527been stated by the court of appeals in the case of Potter v. Ogden, 136 N. Y. 384-402, 33 N. E. 233, as follows:

“Such sureties must remain liable until they can show lawful payment to parties legally entitled to receive it; and, where the sole defense is a merely technical and constructive transfer of liability from the same man in one capacity to himself in another, it is not too much to require that it should be fully and clearly established, so as to leave no doubt of the liability of the substituted sureties.”

It is claimed by the appellants that by the decree of January, 1883, the administrator was released from his liability and duties as such administrator, and was constituted a trustee for the said Caroline Teats, and that he held the amount due for her as the heir at law of the deceased,—as trustee, and not as administrator,—and that thereby the sureties upon his bond became released. I do not think that contention can prevail. I do not think the decree was a final one. While it was a settling and adjustment of his accounts, there could be no final settlement, which could release the sureties upon his bond, until he had paid over the moneys in his hands to the persons entitled to receive them. I do not think that the surrogate intended it as a final settlement of the matter, because it will be observed that his direction is that the administrator retain such amount in his hands until the appointment of a committee, “or until the further order in the premises”; thus evidently contemplating that there should be further action by the court. It will be observed that the decree of 1883, unlike the decree of 1897, fails to make any provision for the final discharge of the administrator, which is customary in a final decree. Again, a settlement of the administrator’s accounts, and a direction, as in this case, that he pay over to the person who is entitled to receive the same, does not release the sureties upon his bond until the administrator has actually paid over such moneys, pursuant to the direction of the surrogate, to the persons entitled to receive the same. It would be a farce to hold that the sureties were released when the administrator’s accounts were settled, and he was directed what to do with the balance, and to hold that they were not liable for his thereafter misappropriating such balance. It will be observed that the court said in the case of Potter v. Ogden that such sureties must remain liable until they can show lawful payment to parties legally entitled to receive it. The only person legally entitled to receive the money in this case is Caroline Teats, or some one lawfully representing her. In this case, Joseph Earl, the administrator, was meyer appointed by any court to represent Caroline Teats and receive the money for her. He was simply authorized to retain the money In his hands as administrator. until some person should be appointed to receive it for Caroline Teats. The fact that a number of years elapsed before any such person was appointed does not alter the situation, or relieve the sureties. The administrator and his sureties <eoúld have applied at any time for the appointment of a committee, and thus have relieved themselves of the responsibility. Section 2828, Code Civ. Proc. So too, either of the sureties could have forced a final judicial settlement of the accounts of the administrator, and thus procured their discharge. Section 2727, Id. The administrator *528has never been finally discharged from his duties as such administrator, and he could not be until he has paid over the moneys in his hands to the persons entitled to receive them; and his sureties were liable until he did so. The decree directed him to pay the balance of the moneys in his hands to the committee of Caroline Teats, when appointed; and the direction to retain it until such committee was appointed evidently contemplated that such retention would be merely temporary, and, when such committee was appointed, if he failed to pay over the moneys, the sureties would be liable for such failure.

It is also claimed that the action against the defendants who were sureties upon the undertaking of the administrator is barred by the statute of limitations. I think that contention cannot be sustained. No right of action would accrue against such sureties until there had been a failure of duty upon the part of the administrator. As we have already, seen, he was not discharged as such administrator, but was directed to retain certain moneys in his hands; and he thereafter, in 1897, rendered an account of his actions in regard to such moneys. To that proceeding Eleanor C. Avery and Andrew C. Fancher were made parties by personal service, or by appearing in the proceedings before the surrogate’s court, and they are bound by its action. As far as appears from this record, no appeal has been taken from such decree, and the action here is brought against them and the administrator for his failure to comply with the terms of that decree, to pay over the amount then found to be due to the plaintiff as committee of the person and property of Caroline Teats. It was at that time that the action accrued against him, and from that time the statute would commence to run.

For these reasons the judgment should be affirmed. All concur.