Sperb v. . McCoun , 110 N.Y. 605 ( 1888 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] It is not questioned that the surrogate had power to revoke the letters of administration issued to Beach, and we are of opinion that the other proceedings in the Surrogate's Court were regular and valid. Under sections 2603 and 2606 of the Code, the surrogate had authority, upon the petition of the plaintiff, as surviving administrator, to compel Beach to account for and deliver over the funds of the estate which he had received to the plaintiff. The decree for the payment and delivery of the fund to him having been made, and executions upon the decree having been returned unsatisfied, he was authorized by section 2607 of the Code to maintain an action upon the official bond to recover the sum thus decreed to be paid to him. If necessary for the maintenance of this action, we think the provisions of section 2609 could also be invoked in his favor. Within the meaning of that section he, in his representative capacity, is a person aggrieved, and, upon that theory, could maintain this action.

We do not deem it important now to determine the precise relation which the plaintiff individually, as one of the principals in the bond, bears to the sureties in reference to the default of Beach. We will assume, as most favorable to the appellant, what has apparently been decided in some cases, that he, as one of the principals, will be bound to indemnify the appellant for any sum which may be recovered against him on account of the default of Beach (Babcock v. Hubbard,2 Conn. 536; Brazier v. Clark, 5 Pick. 96; Overton v. Woodson,17 Mo. 453); and yet we are of opinion that, as administrator representing the estate, he can maintain this action. As against the plaintiff, suing in his representative capacity, the defendant cannot set up as a bar to the action any counter-claim or defense which he has against him as an individual. As surety the defendant is bound to answer for the default of Beach, so that the money misappropriated may be made good to the estate; and after he has paid as surety he may take his remedy, if he has any, against the plaintiff, individually, as one of his principals for indemnity. In this way the estate will be protected by the bond, and the defendant, as surety, will have all the indemnity which the law gives him. And so it was held inBoyle v. St. John (28 Hun, 454.)

The case of Nanz v. Oakley (37 Hun, 495), is not in conflict with the case of Boyle v. St. John. In that case the decree of the surrogate directed the defaulting co-administrator to pay money misappropriated by him to the administrator of his co-administrator, and that administrator assigned the claim to the plaintiff in the action; and there it was held that the action was, in effect, one brought by a principal against his own surety to recover damages for the wrongful act of his co-principal, and that the action could not be maintained. The case was as if this plaintiff had instituted this action as an individual to whom the defaulting administrator had been ordered to make payment as the party aggrieved; and, as we have stated, if the action had been of that character it could not have been maintained.

We, therefore, see no reason to doubt that this case was properly disposed of in the courts below, and that the judgment should be affirmed with costs.

All concur.

Judgment affirmed.