154 N.Y.S. 1096 | N.Y. App. Term. | 1915
The question presented in this ease seems to be novel. Plaintiff sues as a distributee under a decree of the Surrogate’s Court, New York county, upon the bond of the administrator. It appears from the record of the proceedings in the Surrogate’s Court that plaintiff’s right to the sums directed to be paid to her was acquired by assignment from the administrator of his individual interest in the estate; that the application for the bond was made on February 21, 1913, and the bond executed the same day; that letters of administration were issued February 24,1913, and that the assignment was made February 25, 1913; that certain disbursements made by the administrator between March 20 and May 5, 1913, inclusive, were disallowed and his account surcharged in the amount of $160.
The administrator was the husband of decedent and as such entitled to a distributive share in her estate. The assignment purported to transfer to the plaintiff all the right, title and interest of the assignor in the estate of' decedent, to the extent of $300. The surrogate’s decree directed the payment to the plaintiff, as assignee, of the following amounts: $51.05 for administrator’s commissions, $87.25 for the costs of the administrator in the accounting proceeding, and, after the payment of the two-thirds distributive share of decedent’s daughter, the remaining one-third distributive share ‘ appearing to be less than ’ ’ $207.99. These figures total $416.29. No collusion between the administrator and the plaintiff was alleged or proved by the defendant.
The defendant’s contention is that, as the administrator himself, had no assignment been made, could not have‘recovered from the surety, his assignee stands in his shoes and her claim is subject to all defenses which might be urged against the assignor. I think
■ I think the indemnity agreement is of no effect here. It bound the administrator as an individual, but it did not bind his assignee, nor did it constitute a lien on his interest in the estate so as to prevent him from assigning the same.
As the devastavit' was committed, subsequently to the assignment, I think the plaintiff is entitled to recover the amount of the administrator’s distributive share, but no more. The administrator was not, either at the time of the assignment or at the time of the
I think, therefore, that the judgment should be modified by reducing it to $207.99 and taxable costs, and as modified affirmed, without costs.
Maddox and Crane, JJ., concur.
Judgment modified by reducing it to $207.99 and taxable costs, and as modified affirmed, without costs.