
    The People of the State of New York ex rel. Judson Sackett, Appellant, v. Egburt E. Woodbury, as Surrogate of Chautauqua County, Respondent.
    
      Execution against an administrator on a surrogate’s decree after the expiration of five years—notice to the administrator—peremptory, mandamus against the surrogate—review Try mandamus.
    
    Sections 1377 and 1378 of the Code of Civil Procedure, which provide that ' notice of an application to the court for leave to issue execution on a final judgment, after the lapse of five years from its entry, must be served personally upon the adverse party, if he is a residént of the State, are applicable to a decree of the Surrogate’s Court judicially settling the accounts of an administrator.
    The five years’ limitation commences to run from the time of the entry of the ' decree in the Surrogate’s Court, and not from the time that a transcript of the ' decree is docketed in the county clerk’s office.
    Where an administrator, pursuant to the terms of a decree of the Surrogate’s Court finally settling his accounts, pays into the Surrogate’s Court the distributive share of one of the next of kin supposed to be dead, and after the lapse of moré than five years after the entry of the decree such next of kin appears and makes application for leave to issue execution upon the decree in order to obtain payment of his distributive share, the surrogate rhay, in his discretion, irrespéctive of any statutory authority, require'notice of the application to be served upon the administrator.
    
      A peremptory writ of mandamus, requiring the issuing of an execution by the surrogate, will not he granted unless his refusal to do so is clearly and unmistakably established.
    The action of the surrogate in refusing to issue the execution without notice to the administrator cannot be reviewed by mandamus,
    Appeal by the relator, Judson Saekett, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Chautauqua on the 8tli day of July, 1901, denying the relator’s application for a peremptory writ of mandamus requiring the surrogate of Chautauqua county to issue an execution to enforce the payment of a sum of money in accordance with a decree of the Surrogate’s Court of said county.
    
      Thomas H. Larkins, for the appellant.
    
      Frank W. Stevens, for the respondent.
   Spring, J.:

On the 30th day of June, 1894, in proceedings for the judicial settlement of. the account of Van Burén Saekett, as administrator of the goods, etc., of Jacyntha Saekett, deceased, a decree was entered in the‘Surrogate’s Court of Chautauqua county finally settling his account, and directing that said administrator pay to the relator Judson Saekett, $498.60, his distributive share as one of the next of kin of said deceased. Said decree further ordered that, in case said payment could not be made - to said Judson Saekett, the same be paid into the Surrogate’s Court of said county. In 1899 proofs were presented to the said Surrogate’s Court sufficient to raise the presumption of the death of said Judson Saekett, and an administratrix of his personal estate was appointed who continued to act in that capacity until May 6, 1901, when the letters of administration were revoked as the alleged decedent was ascertained to be alive and the revocation of the letters was at his instance as well as that of the administratrix. During the incumbency of said administratrix proceedings were commenced on her behalf to enforce the decree of June, 1894, by requiring the respondent to pay over to her the sum adjudged as the distributive portion of the relator. The respondent answered, alleging that he had paid such sum to a former surrogate of said county, but the proceedings were dismissed without determining as- to the validity of this payment. On the 16th day of April, 1901,'a transcript of said decree was docketed in the clerk’s office, of said, county, and, as a proceeding was to be commenced for the enforcement of the Recree direct-. ing the payment to the relator, the surrogate wrote to his attorney ■ advising him, among other things, Of the propriety Of giving notice of the proceedings to the' respondent in ■ conformity with sections 1377 and 1378 of the Code of Civil Procedure. A. citation was subsequently issued to the administrator requiring him to show causé why an execution should not issue Upon the decree entered " in the 'Surrogate’s Court. The proceeding was dismissed on the ground that.the* petition was insufficient, but without prejudice to the renewal of the application.. The.attorney for the■ relator thereafter presented the papers used upon this application for the. writ of mandamus, and the surrogate questioned' their sufficiency and advised the issuing of a citation to the administrator, as that officer desired to test the validity of the payment "to the former, surrogate, and the fact of such payment was obvious by the records in the surrogate’s office. The attorney thereupon asked leave,, which was granted, to withdraw his papers, informing the surrogate-he would examine the practice regulating applications' of this kind. Subsequently,- without any further application or request to the surrogate, this proceed-r ing for a-peremptory writ requiring the surrogate to issue an . execution was-commenced.' ; . .

. . We think there áre several cogent reasons for affirming the order of the 'Special Term denying the writ:

First: The judicial settlement of the account of the respondent as administrator was clearly within the cognizancé of the Surrogate’s Court, and its decree was “the final determination of the.rights of the parties,” . (Code Civ. Proc. § 2550.) That decree was conclusive upon their rights and possessed the same force and verity , as .the judgment of any court of competent jurisdiction. (Baldwin v. Smith, 91 Hun, 230; Garlock v, Vandevort, 128 N. Y. 374; O'Connor v. Huggins, 113 id. 511.)

By section 2553 of the Code of Civil Procedure a transcript of the. decree, directing the payment “ of money into court or to one ■or more persons therein designated ” may be docketed in the clerk’s docket book, “ kept in his office as. prescribed by law for" docketing a judgment of the Supreme Court. The docketing of such a decree has the same force and effect * * * as if it was such a judgment.” It still remains, however, a decree of the Surrogate’s Court (Townsend v. Whitney, 75 N. Y. 425), and the surrogate or his clerk alone has power to enforce the decree by issuing an execution (Code; § 2554), or in a proper case by punishing the party refusing to obey it for Contempt. (Code, § 2555.) In these various proceedings and remedies the surrogate or his court still retains exclusive jurisdiction over the subject-matter of the decree, and the docketing in no way impairs this authority or transmits it to any' other court. The object of docketing the decree is to create a lien upon the property of the party charged with the payment of the money, not to change the character of the decree or to divest the surrogate of-jurisdiction. In enforcing the decree, section 2554 of the Code, however, after providing that execution can be issued only by the surrogate or the clerk of his court, adds: “ In all other respects the provisions of this act, relating to an execution against the property of a judgment debtor, issued upon a judgment of the Supreme Court, and the proceedings to collect it, apply to an execution issued from the Surrogate’s Court, and the collection thereof, the decreé being, for that purpose, regarded as a judgment.”

The mode of procedure, therefore, covering the issuing of an execution on a judgment of the Supreme Court is applicable to oné issued to enforce the decree of the Surrogate’s Court directing the payment of a sum of money. Section 1377 of the Code permits an execution on a final judgment after the lapse of five years from the entry * * * where an order is made by the court granting leave to issue the execution.” By the following section notice of this application must be served personally upon the adverse party if he is a resident of the State.” The docketing of the decree did not make a new date for the starting of the five years limitation upon the issuing of an execution without leave of the court. The period from which the five years commences to run is the entry of the final judgment, which in this case was the entry of the decree, and there was no merger of the decree into a judgment by its docketing. The decree itself was not even entered in the clerk’s office, but a transcript attested by the surrogate or the clerk of his court furnished the data from which it could be docketed.

We are, therefore, satisfied that the surrogate' was within the strict line of his official duty in urging upon the attorney for the ■relator the necessity of complying with the requirements of these sections. There are no reasons which occur to us why these provisions are not applicable to the enforcement of - the decree of the ■Surrogate’s Court, and the obvious intention of the Legislature has been to conform the practice of that court as far as possible to that. :which obtains in other courts of record.

. Second. In the present cáse the surrogate very properly insisted that the administrator should have notice of the application to .issue an execution. The records of his court relating to the settlement of this estate showed that the administrator had endeavored to comply with its, requirements and had paid the' money to the surrogate who signed the decree. It was contended in his behalf that the payment was a satisfaction of the decree so far as" it affected the appellant, and, whether right or wrong in this contention he ought to be given an opportunity to have its validity determined before any execution was issued. Irrespective of any statutory authority the surrogate was acting within his inherent power, which necessarily vested him with some discretion in insisting that the administrator be given notice that the relator desired to enforce' the decree by execution. The requirement that he notify the administrator was not burdensome, could readily be complied with and was in every way reasonable.

' Third. But the surrogate did not unqualifiedly require that, notice be given to the respondent of the application for leave to issue the execution. He advised this and apparently the attorney for the relator acquiesced in the suggestion of the surrogate. The writ peremptorily requiring the surrogate to issue the execution, and which of itself implies an improper refusal by the surrogate, may not be granted until the declination of the official to act is clear and unmistakable.

■Fourth. We apprehend, however, that the remedy by peremptory writ of mandamus is not the proper manner in which to review the . conduct of the surrogate, even if tantamount to a refusal to issue the execution without notice to the administrator. Conceding the application for execution was made unequivocally, the surrogate was called upon to act judicially, which he did. While not denying the right of the relator ultimately to have the execution issued, the surrogate in the exercise of his discretion required, as a preliminary step that the administrator be called in to be heard. This judicious course of the surrogate cannot be reviewed by mandamus. (People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288; People ex rel. Lunney v. Campbell, 72 id, 496 ; People ex rel. Woodward v. Rosendale, 76 Hun, 103.) The remedy savors too much of'an attempt to coerce á public official who was obviously endeavoring to perform his whole duty to both parties interested. If there had been in fact' a refusal to issue the execution without notice, an order denying the applicar tion might have been entered and a review had by appeal.

For these reasons, we conclude that the order should be affirmed,, with ten dollars costs and the disbursements of this appeal.

McLennan, Williams, Hiscock and Davy, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.'  