In re the Estate of Edelmuth , 265 A.D. 20 ( 1942 )

Per Curiam.

Petitioner, judgment creditor of a legatee of the estate of Leopold Edelmuth, deceased, has a garnishee execution under section 684 of the Civil Practice Act against the income due and to become due to one Bella G-reenbaum, life beneficiary of a trust fund established under the will. The garnishee execution was served upon the executor and trustee on April 25, 1937, but no payment has been made.

We think the learned Surrogate properly denied petitioner’s demand for a compulsory accounting in the estate. As defined by subdivision 10 of section 314 of the Surrogate’s Court Act, petitioner is neither an assignee nor a person otherwise interested in the estate but has a remedy by action against the executor and trustee under subdivision 3 of section 684 of the Civil Practice Act. Indeed it has been held that the sole remedy for failure to comply with the execution is the action authorized by the statute to recover the amount which should have been paid to apply on the execution. (See Keve v. Columbia Kid Hair Curlers Mfg. Co., 161 App. Div. 918.) By such action petitioner may protect its rights without burdening the estate with the expense of an accounting. The statute expressly confines the right to demand an accounting to the defined “persons interested” to prevent unnecessary and unjustifiable expense to estates in the Surrogate’s Court. (Matter of Arkenburgh, 38 App. Div. 473, 475.) /

The order appealed from should be affirmed, with twenty dollars costs and disbursements.