
    In the Matter of the Application of Henrietta Steinau, Respondent, for an Order that Execution be Issued upon Judgments Obtained by her against Max Scheuer and Ralph Scheuer, as Executors, etc., of Simon Scheuer, Deceased, Appellants.
    
      Petition of judgment creditors for learn to issue execution against an executor— the executor must show that the payment will he unjust to other creditors.
    
    The petition on an application to a surrogate for leave'to issue execution on a judgment recovered against an executor is sufficient when it alleges assets sufficient to satisfy the j udgment; the duty of ¡making it appear that it is improper to allow the applicant to issue execution because of insufficiency of assets to pay the other creditors rests upon the executor.'
    Appeal by Max Scheuer and Ralph Scheuer, as executors, etc., of Simon Scheuer, deceased, from an order of the Surrogate’s Court of Hew York county, entered in said Surrogate’s Court on the 13th day of August, 1897, directing an execution or executions to be issued against the said Max Scheuer and Ralph Scheuer, as executors of Simon Scheuer, deceased. ■ • •
    
      JEL. -JR. JRiohards, for the appellants.
    
      Otto JEEorwitz, for the respondent.
   Van Brunt, P. J.:

The respondent herein having procured certain judgments against the appellants as executors, applied to the surrogate for leave to issue executions upon said judgments and alleged that the appellants, as executors, had in their possession assets sufficient to satisfy the judgments. The appellants presented no papers in opposition to the application, and an order was entered granting leave to issue the execution, from which order this appeal is taken.

It is claimed upon the part of the appellants that the petition for leave to issue execution was defective in that it contained no allegar tian that there were assets in the hands of the executors which might be applied in the payment of the petitioner’s claim without injuriously affecting the rights of others entitled, to equality or priority of payment. . >

That this position is not well taken is evidenced by the language of section-1826 of the Code of Civil Procedure, under which this application is made. The provision is as follows: “At least six days’ notice of the application for an order specified in the last section must be personally served upon the executor or administrator, unless it appears that service cannot be so made with due diligence; in which case notice must be given to such persons and in such manner as the surrogate directs, by an order to show cause why the application should not be granted. Where it appears that the assets, after payment of all sums chargeable against them for expenses and for claims entitled to priority as against the plai/ntiff, are not or will not be sufficient to pay all the debts, legacies or other claions of the class to whidi thepla/witiff’’s claim belongs, the sum directed to be collected' by the execution shall not exceed the plaAntiff’s just proportion of the assets.”

It, therefore, appears by the language of the section that the limitation of the right to execution depends upon the fact appearing that the assets are not sufficient to pay the plaintiff in full. In the case at bar the plaintiff alleged assets sufficient to satisfy the judgments. This is clearly equivalent to an allegation of assets applicable to the judgments. The burden thereafter of showing that these assets, after payment of all sums chargeable against them for expenses and for claims entitled to priority as against the plaintiff, are not sufficient to pay all the debts, legacies or other claims of the class to which the plaintiff’s claim belongs, is upon the executors. The judgment creditor can know but little of these facts; the executor, possesses all the knowledge necessary to inform the court,' and, by the section quoted, the duty'is imposed upon the executor of making it appeal’ that it is improper to issue an execution because of insufficiency of assets. Where the executor makes no answer to, the allegation as to assets, it is clear that the -surrogate has the authority to direct the issuing of an execution if he thinks proper.

The order should, therefore, be affirmed, with costs and disbursements.

Barrett, Rumsey, O’Brien and Ingraham, JJ., concurred.

Order affirmed, with costs' and disbursements.  