Opinion
February 21, 1962
Wolynetz Steck for petitioners.
This is a proceeding pursuant to section 217 of the Surrogate's Court Act in which the petitioners request that the executrix be cited to show cause why she should not pay the claims herein.
The respondent executrix has defaulted in that she failed to properly answer the petition thereon and has not formally rejected the claim.
A proceeding pursuant to section 217 of the Surrogate's Court Act is a special proceeding in which the court is called upon to ascertain certain facts and to exercise its discretion. The application and use of said section is subject to uncertainty. Relief under this section is available only in extraordinary situations where no other remedy is available and it is not intended as a substitute for the maintenance of a proceeding to compel the fiduciary to account ( Matter of Quenzer, 152 Misc. 796).
In the present case the court is unable to determine whether a direction that the fiduciary pay the claims in question would prejudice the rights of other creditors. The appropriate remedy appears to be by way of an application to compel the executrix to account.
Accordingly, the court dismisses the petition herein without prejudice to petitioners' commencing a proceeding to compel the executrix to account, unless each of the claimants are willing to furnish a bond for the protection of the estate as provided in section 218 of the Surrogate's Court Act, in which case direction for payment will be made upon the filing of such bonds within two weeks of the date of this decision.