Opinion
December Term, 1896.
Howard Putman, for the appellant.
Harry Sherburne, for the respondent.
The proceedings under sections 2707-2709 of the Code of Civil Procedure were intended to be a summary mode of discovering and reaching the property of the decedent in the hands of a third person; they were not intended to authorize proceedings to collect a debt. ( Matter of Stewart, 77 Hun, 564.)
It has been held that an executor has no right to examine a debtor of the deceased merely to ascertain the amount of such debtor's liabilities to the estate. ( Estate of Knittel, 12 Civ. Proc. Rep. 1.)
It seems, also, that the maintenance of such proceedings was contemplated only where the character of such property was definite and certain and its ownership undisputed. Section 2709 provides that upon the filing of a verified answer and claim of ownership to, or lien upon, the property in question, the proceedings shall be dismissed. ( Matter of Cunard, 27 N.Y. St. Repr. 128.)
The proceedings here seem to have been of the most informal character. Dillon appeared before the surrogate without counsel, and was examined; and upon an adjourned day he again appeared with counsel and was examined, but no written answer was submitted on his part.
The slightest examination of the proceeding shows that it was necessary to have an accounting in order to determine the amount of money that had been received and paid out by Dillon. The accounting that was had was of the most summary and informal character.
Upon his examination Dillon did not claim to have an exact statement of the several amounts paid by him from the moneys received, but he did assert that of the amounts received by him there was only $400 left, and he did assert that his aunt informed him that he was to have what was left of the moneys after her death.
I do not think that the state of facts shown here is one that authorizes a proceeding or decree under sections 2707, 2708 and 2709.
They are not intended to secure an accounting for moneys had and received, paid, laid out or expended, or to ascertain the balance due upon such an account.
The decree should be reversed, with ten dollars costs and disbursements of this appeal, and the proceedings in the Surrogate's Court dismissed, with the costs and disbursements of such proceedings. All costs and disbursements to the appellant to be paid out of the estate.
All concurred.
Decree reversed, with ten dollars and disbursements, and proceedings in Surrogate's Court dismissed, with costs and disbursements of such proceedings. All costs and disbursements to appellant to be paid from the estate.