Mundorff v. Wangler

12 Jones & S. 495 | The Superior Court of New York City | 1879

Sedgwick, J.

James Moore, the testator of defendant, and another as sureties, with Jacob Mundorff .as principal, made their joint and several bond upon condition “ that if the above bounden Jacob Mundorff shall faithfully execute the trust reposed in him as administrator, &e., &c., of John Mundorff, late of the city of Hew York, deceased, and obey all orders of the surrogate of the county of Hew York, touching the administration of the estate committed to him, then this obligation to be void,” &c.

In 1870 the surety, James Moore, died.

" In 1876 an order was made by the surrogate, that Jacob Mundorff, the administrator, forthwith pay to the plaintiff in-this action the sum of $7,996.99, together with the costs-amounting in all to $8,337,52. The original petition of plaintiff’s citation, decree or order were produced upon the trial from the surrogate’s office. The recitals in the order stated facts sufficient to show that the surrogate was proceeding within his jurisdiction. It was proved that the administrator had “ omitted ” to perform the decree (sec. 23, chap. 320, Laws 1830); that the surrogate’s certificate under the decree was duly docketed by the clerk of the county; that execution was duly issued and returned unsatisfied, and that the surrogate had assigned the bond given by the administrator (2 R. S. [Edm. ed.], secs. 63, 64, 65, p. 498). The plaintiff, therefore, proved a breach of the condition, that the administrator would obey all orders of the surrogate and a due assignment of the bond. This was enough to sustain the action and required that the judge should direct a verdict for the plaintiff (Brewster agt. Balch, 41 N. Y. Superior Court R., p. 69; Dayton agt. Johnson, 69 New York R., p. 419).

The plaintiff, upon the trial, unnecessarily proceeded to establish the validity of the claim made in the petition, by producing records tending to prove that the plaintiff had procured judgment against the administrator, and to reinforce the presumption of jurisdiction by giving evidence of the filing of inventory, &c. Many objections were taken on the trial to the proofs here alluded to.

It is not profitable to notice them all in detail, in as much as if the matters were all out of the case, the court would have been bound to make the direction he did.

It is specially objected that it did not appear that John Mundorff had died, nor, therefore, that the surrogate had jurisdiction of the administration of his estate. If there was not a presumption that he had died, it would be sufficient proof by admission of defendant’s testator that he acted and led others to act as if the death had occurred.

It is further urged that the obligation of the bond is not shown until it is also proved that the surrogate, as directed by statute, approved it, and there was no such proof. The provision as to approval was not made for the benefit or protection of the administrator or sureties but of creditors and distributees. If the latter do not require it but waive their right or omit to object, the former cannot rest upon what is in the nature of an objection to their own acts.

It appears that the order of the surrogate directed the payment of an amount greater than was really due to the petitioner, and in fact the order followed the judgment that had been obtained against the administrator. The plaintiff did not ask that the decree he enforced as to the error but asked that a proper deduction be made. Indeed, the plaintiff recognizing the error, and before trial, acquiesced, by stipulation, in a proper reduction of the judgment. Strictly, the decree of the surrogate was a final adjudication as to the amount of the judgment. It proceeded «upon an allegation of the petition, that a judgment had been obtained and an adjudication as to the existence and amount of the judgment was directly involved in the proceedings. But under any circumstances it would not be proper to consider the decree void or inoperative for such an error. • If all the proceedings were taken together they furnish a correction of what was an error of computation and it could be deemed corrected.

It is objected that a demand for the payment of the decree should have been made upon the administrator. This was not necessary, for an omission by the administrator to perform the decree rendered the sureties liable by the act of 1830, chapter 320, section 23, and by section 65 chapter 460, Laws of 1837, the return of the execution unsatisfied gives the creditor a right of an assignment of the bond.

I do not see any ground for the proposition that the surety’s liability upon the bond did not extend tó defaults after his death. It was not revocable at his will; the intent of the contract covered defaults after death, not only because of the nature of the subject-matter but, because, also, he expressly bound his executors and administrators.

There should be a correction of the error of calculation in the amount of the verdict, viz., $200.

The exceptions of defendants are overruled and judgment for plaintiff on the direction of the court is ordered, with costs to plaintiff, but such costs are to abide the future direction of the court at special term as to the costs of this action.

Fbeedmau, J., concurs.

The plaintiff moved for costs, &c., at a special term, on the 25th day of March, 1879, and the motion was denied by Freedman, J, who gave an opinion as follows:

“ The costs of general term were made to abide the discretion of the court at special term as to the costs of the action, and under the decision of this court in Keyser agt. Kelly (43 N. Y. Superior C. R. [11 J. & S. ], 22) no costs, whatever, can be allowed.”