In re Georgi

60 N.Y.S. 772 | N.Y. App. Div. | 1899

Patterson, J.:

On the 21st of January, 1898, the surrogate of the county of New York made a decree, directing that certain real property of the petitioner’s intestate be sold for the payment of debts and funeral expenses. Pursuant to that decree a part of the' property was offered for sale and was bid in by Peter Daly, who subsequently declined to take title, whereupon the administrator applied to the surrogate and procured an order requiring the purchaser to show cause why he should not complete his purchase. In response to that order the purchaser presented his petition to the surrogate, in which he stated his objections to the title and prayed that he be relieved from the purchase, and that he have refunded to him a deposit made with the auctioneer at the time of sale. The surrogate, in passing upon these' petitions, decided that the purchaser should be relieved from his purchase, and that the money deposited by him should be refunded with interest and the expenses incurred by him. Several objections were stated by the' purchaser, but.it is only necessary to consider one of them.

The second objection is well taken, and goes to the foundation of the-whole proceeding under which the sale was had. That objection is in the following words: “That the citation issued upon the tiling of the petition in this proceeding, although issued as required by section 2754 of the Code of Civil Procedure and directed to the creditors therein named and to all other creditors, was not published- as required by section 2523 of the Code of Civil Procedure.” The defect pointed, out is one directly affecting the sufficiency of the procedure to bind those who were entitled to notice. Section 2754 of the Code of Civil Procedure requires that unless the executor or administrator has caused to be published, as prescribed by law, a notice requiring creditors to present their claims, and the time for the presentation thereof, pursuant to notice, has elapsed, the citation niust be directed, generally, to all other creditors of the decedent as well as the creditors named. It is admitted in the record that no order to advertise for claims had been made, and that no advertisement for creditors to present claims had ever been published, and that no order for publication' of the citation was applied for, or made by the Surrogate’s Court. Section 2523. of the Code of Civil Procedure’ provides that the surrogate may make an order for service of citation by publication upon one or more unknown creditors, next of kin, legatees, heirs, devisees or other persons included in a class to whom a citation has been directed designating them by a general description.

It would seem to be clear that it was intended by the Legislature that in a proceeding of this character creditors should receive notice. It is suggested that the provision of section 2523 of the Code of Civil Procedure leaves it discretionary with the surrogate to require a citation to be served by publication; but we are: of opinion that in a proceeding of this character, where the administrator has not published a notice requiring creditors to present claims, or where he has published, such a notice and the time in which to present them has not elapsed, that it is necessary a citation directed to creditors, designating them by a general description,, shall’ be published as there is no other way in which notice can be brought home to unknown creditors. Those creditors must; be cited. In commenting upon section 2754 of the Code of Civil Procedure, Surrogate Rollins in Kammerrer v. Ziegler (1 Dem. 177) said that the provisions of that section were designed to do away with publication when creditors have by published notice been required to present then' claims, but “ unless such a course has been pursued, creditors, whether known to exist or not, must be cited as a class and such citation must be .published as required by section 2523.” That we understand to be the proper interpretation. The proceeding is a statutory one and divests title to real estate, and must be strictly pursued. (Stilwell v. Swarthout, 81 N. Y. 109.)

The second objection was well taken, and the decree of the surrogate was correct and must be affirmed, with costs.

Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Decree affirmed, with costs.