15 N.Y.S. 928 | N.Y. Sup. Ct. | 1891
The motion of the defendant at the circuit was in the nature of an oral demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. For the purposes of the motion, therefore, all the allegations of the complaint stand admitted. Those allegations, as summarized in the points of the respondent on this appeal, are as follows; The complaint alleges that the plaintiff is an infant, and that in
This complaint seems to have been dismissed under the supposed doctrine of Stilwell v. Mills, 19 Johns. 304; Salisbury v. Van Hoesen, 3 Hill, 77; Hood v. Hood, 85 N. Y. 561; Perkins v. Stimmel, 114 N. Y. 359, 21 N. E. Rep. 729; and other cases,—all of which are cited and relied upon by counsel for the respondent here. We do not consider these cases as authority for the disposition made of this case. All of them are cases of actions on the bond of the trustee, guardian, or personal representative, and against the ■sureties on such bond. That is the action which, in all of the cases cited, it is held cannot be maintained until after an accounting, in equity, by the trustee. The case of Stilwell v. Mills, supra, is the leading, case, followed throughout the whole list; and the gist of that decision, which is substantially re-echoed in all the cases, is contained in the following language of the court; “It would be peculiarly unfit to submit the accounts [of the guardian] to the decision of a jury or of referees. * * * The true effect of the condition of the bond is to render an account to the court of chancery, and, as this has not been required, the condition of the bond is not violated.” The case in 3 Hill, supra, was an action of debt on the bond; and the court, following the case in Johnson, cites the statute of 1815, providing that the bond, if forfeited, can be prosecuted only “by the direction of the chancellor,” which direction will be given only after proceedings for an before him.