
    In the Matter of the Estate of Jacob Straut, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889 )
    Executors and administrators—Accounting—When application for
    DECREE AGAINST EXECUTOR DENIED.
    Where on an application for a decree requiring an executor to judicially settle his account and pay the petitioner his share of the estate of the deceased, it appeared that prior to the filing of the petition an action was brought by the trustees under the will of the deceased against the executor for the benefit of the petitioner, among others, and that he was represented therein; Held, that the application was properly denied.
    Appeal from an order of the surrogate of the county of New York, denying the application of Francis M. Hopper, appellant, for a decree requiring the respondent, Garret Z. Snider, executor, etc., judicially to settle his accounts and pay the appellant his share of the estate of the deceased.
    
      Irving Browne, for resp’t; W. J. Hardy, for app’lt.
   Macomber, J.

—The allegations of the respondent to the petitition of the appellant show, among other things, that long prior to the fihng of this petition, an action was brought in the supreme court of this state by the trustees, under the will of Jacob Straut against the present executor, in which Maria, the wife of Francis M. Hopper, and all others interested in the estate of Jacob Straut were made parties defendant. It is further alleged in this answer that such action was brought for the benefit of this petitioner, among others, and that he was represented therein..

The petitioner claims, under Maria Straut who, it is shown, was a party to the action in the supreme court. This is followed by proof of the judgment record in that action, and no evidence seems to have' been given to vary or break the force thereof. Under these circumstances, the order of the surrogate is right, and must be affirmed.

It is so ordered, with costs.

Beady, J., concurs._  