57 N.Y.S. 835 | N.Y. App. Div. | 1899
It is not disputed that the petitioner, on the 22d day of November, 1897, recovered a judgment against the administratrix of the estate of Gall. Upon appeal being taken, the same was affirmed, and the order of affirmance duly entered on the 13th day of May, 1898. On the 3d day of September, 1898, application was made to the surrogate for an order requiring the administratrix to pay the judgment and for leave to issue execution for its enforcement or for such other relief as might be proper. The moving papers also tended to establish that prior to the commencement of the action in which judgment was recovered, the petitioner had caused to be served upon the administratrix notice of the petitioner’s claim with a demand for its payment. The application was met byj>roof tending to establish that no notice of claim had ever been given. It further appeared that in the action in which jilaintiff recovered his judgment, among the questions therein determined was the issue as to whether the plaintiff had in fact served notice of his .claim against the estate upon the defendant therein. Upon this issue the court found that the plaintiff’s claim was presented and exhibited by the plaintiff to the defendant about the month of December, 1890. The court thereupon made its certificate of such fact and awarded judgment for costs against the estate of the decedent. It also appeared that prior to the entry of judgment, in March, 1892, the administratrix presented an account of her proceedings to the surrogate of Kings county, and that such proceedings were thereafter
We are of opinion that, in order to entitle the petitioner to have an execution issue upon his judgment, he is required to show either that the representative has funds of the estate on hand applicable to the payment of the judgment which he refuses to apply,, or that funds of the estate have been misapplied which ought to have been devoted to the payment of the judgment. Such we conceive to be the necessary construction of sections 1825, 1826 and 2552 of the Code of Civil Procedure. We agree in the construction which has been placed upon these sections by the learned surrogate of Cortland county. (In re Hathaway's Estate, 24 N. Y. Supp. 468; Hauselt v. Gano, 1 Dem. 36.) This was also the rule adopted by the surrogate of the county of New York, and his determination was affirmed on appeal. (Matter of Congregational Unitarian Society, 34 App. Div. 387.) It follows, therefore, that the surrogate was clearly right in denying leave to issue execution. This conclusion must result in the affirmance of the order from which the appeal is taken, as such order does not assume to.determine any other question, and the appellant does not claim that any other right to which he might be entitled has been denied. The learned surrogate, however, lias passed upon other questions, as appears from his opinion, which may seriously affect the petitioner in availing himself, of those remedies to which we think he may resort; and, in view of such possible action, we are led to the expression of an opinion upon such questions, in order that a guide may be furnished fór future' proceedings.
The decree which was made upon the final accounting Kvas .not binding upon the petitioner. The provisions of sections 2472 and
. It is' said that the present decree is final, for the reason that the Statute of Limitations bars the petitioner’s right to have it opened. This depends upon the time when the statute began to run. ' It could not begin to run until the claimant had established his interest in the estate, as, prior to that time, his claim being in contest, it was not established that he had any interest. When he obtained his judgment, then, for, the first time, he was in a position to insist upon his rights, and resort to such remedies as the law provides. Such is the express provision of section 415 of the Code of Civil Procedure. That the statute did not begin to run until the recovery of the judgment is expressly decided in Matter of Congregational Unitarian Society (supra). Computed from this time the Statute of Limitations has not yet run, and, therefore, constitutes no bar to the petitioner’s claim. The power of the surrogate to open the decree and order a rehearing for the purpose of determining the rights of the claimant, and the status of the administratrix in respect thereto, is as ample as the need requires. (Sipperly v. Baucus, 24 N. Y. 46; Matter of Henderson, 33 App. Div. 545; affd. on appeal, 157 N. Y. 423; Van Rensselaer v. Van Rensselaer, 113 id. 207.) As the administratrix has assumed to distribute the estate without notice to the petitioner, if she filed the petition for settlement, with notice of the petitioner’s claim, and did not make him a party thereto, the former decree will furnish no protection, unless the petitioner’s claim is subordinate thereto for some other reason.
We think that the judgment awarding costs in plaintiff’s action is res adyudicata upon the question of the presentation of the plaintiff’s claim to the administratrix. Upon this question the Code of Civil Procedure (§§ 1835, 1836) provides, the first section, where a judgment for a sum of money is awarded against a representative, costs shall not be awarded against him in his representative capacity, except as prescribed in the next section; the second section, “ Where
These views lead us to the conclusion that the. order should be •affirmed, but Avithout prejudice to the appellant’s right to apply to •open the decree of settlement, or to take such other steps as he may be advised.
All concurred.
Order affirmed, with ten dollars costs and disbursements, without prejudice to the appellant’s right to apply to the surrogate to set aside or open decree of distribution.