
    Frank J. Dunne, Plaintiff, v. The American Surety Co., Defendant.
    (Supreme Court, New York Special Term,
    April, 1901.)
    Equitable action by an administrator de bonis non against the surety on his predecessor’s bond, the latter having left the State and died without it — Leave to sue unnecessary — Code C. P., §§ 2606, 2609.
    An administrator de lonis non of an intestate, appointed in the State of New York in place of a deceased administrator, may, without leave of court, and although the intestate left no debts, sue the surety on the bond of the administrator for moneys of the estate received by him, but for which neither he nor his executor has accounted or 'will account, and this although the deceased administrator removed from the State of New York to a foreign State, died there and did not leave in this State either personalty dr personal representatives.
    Action by administrator de bonis non against surety on the 'bond of deceased administrator, his predecessor.
    William P. Maloney, for plaintiff.
    H. C. Willcox (D. J. M. O’Callaghan, of counsel), for defendant. '
   Gildersleeve, J.

This is an action brought by Frank J. Dunne, as administrator de bonis non of the estate of Terrance A. McCauley, sometimes known as Thomas A. Macaulay, against the American Surety Company, as surety on the bond of one Daniel McCauley, now deceased, as administrator of the estate of the said Terrance A. McCauley, deceased, for an account of the administration of the said Daniel McCauley, deceased, as administrator, as aforesaid, of the estate of the said Terrance A. Mc-Cauley, deceased. The complaint demands that the said surety pay over to the plaintiff, as such administrator de bonis non, the amount found to be due, not exceeding the sum of $5,000, the amount of said bond. The case was tried before the late Justice Beekman, who died before rendering his decision, and the matter now comes up at Special Term, Part III, and is submitted under a stipulation that the record taken before Mr. Justice Beekmaq shall stand as the record in the case as to testimony, exhibits, motions, rulings and exceptions. I have nothing to do, however, with the rulings of Mr. Justice Beekman, which must be passed upon by the appellate court. The law of the case has been laid down by the Appellate Division upon an appeal from an interlocutory judgment overruling a demurrer to the complaint. The appellate court affirmed the interlocutory judgment, and laid down the following doctrine, viz.: Under sections 2606-2609 of the Code of Civil Procedure an administrator de bonis non of the estate of a decedent, appointed in place of a deceased administrator, succeeds to all the powers and duties of the latter, and to all rights of action, whether at law or in equity, against his personal representatives; and such administrator de bonis non may, without obtaining leave of the court, sue the surety upon his predecessor’s bond, conditioned to “ obey all lawful decrees and orders of the Surrogate’s Court ” where such predecessor has appropriated the proceeds of property' belonging to his decedent’s estate to his own use, removed to a foreign State, and died there, leaving no personal property or representatives in the State of New York, thus preventing a literal breach of the conditions of the bond. The case does not fall within section 1888 of the Code of Civil Procedure; an action upon the bond is, in such a case, an action in equity; and, semble3 that, in such an action, the heirs-at-law and next of kin of the deceased administrator are not necessary parties defendant. Upon the trial of the action the defendant put in no evidence beyond showing that no leave ta sue had been given to the plaintiff. This, however, has been held, as we have seen, to be unnecessary. The facts of the case, as admitted by the answer, or as conceded upon the trial, appear to be substantially as follows, viz.: Terrance A. McCauley died while a resident of this city, and his brother Daniel McCauley was appointed administrator of the estate of the deceased by the surrogate of this county, and gave a bond with the defendant, the American Surety Company, as surety, in the amount of $5,000. The estate consisted at least of two United States patents belonging to the said Terrance A. McCauley, which patents came into the possession of Daniel McCauley as administrator. The said administrator sold the said patents for $5,000, and received the money therefor. The administrator, at the time he became such, was a resident of Massachusetts and had no property in this State, and there is no evidence tending to show that he subsequently acquired any property in the State. The said Daniel never took any steps towards accounting as such administrator, and died in Massachusetts without having, so far as appears, taken any action as such administrator beyond turning the assets into cash. Upon his death his son was appointed executor of his estate in Massachusetts, but said Daniel McCauley left no personal representative in the State of New York, nor had he any at the time of the trial of this action. The plaintiff, upon the death of the said Daniel McCauley, was duly appointed administrator de bonis non of the estate of the said Terrance A. McCauley, deceased, by the surrogate of this county. The said plaintiff is one of the next of kin of the said Terrance A. McCauley, who left no wife or children. The uncontradicted evidence of the plaintiff shows that he demanded an accounting of the executor of the estate of the deceased administrator and that such accounting was refused. He also tried to compel said executor to account before the surrogate of this county, but the proceedings were dismissed for want of jurisdiction, as the said executor and estate of the deceased administrator were not within the State of New York. Terrance A. Mc-Cauley died in 1894, and in the same year, to wit, oh May 23, 1894, the said Daniel became administrator. Up to the time of his death, on January 8,1898, nearly four years after his appointment as such administrator, he had taken no step's towards an accounting, and, so far as appears, still held the $5,000 that he had received as such administrator from the estate of Terrance A. McCauley, deceased. His executor refuses to account. The plaintiff claims that the deceased administrator appropriated the said sum to his own use; hut of this we have no positive or absolute proof. The said administrator had never filed an inventory, or given any indication of the subsequent disposition of the said sum of $5,000, received by him from the sale of the said patents belonging to the estate of Terrance A. McCauley. The plaintiff, in spite of reasonable efforts, has never been able to get the executor or estate of the said deceased administrator within the jurisdiction of the New York courts. It is urged that, although the complaint alleges that Terrance A. McCauley left no debts, no attempt was made on the trial to substantiate this allegation. This, however, is not of much importance at the present stage of the case; for, to quote the language of Mr. Justice Rumsey (who only dissented from his colleagues upon the question of plaintiff’s duty to obtain the leave of the court to sue), the rule is that The representative of the estate of Terrance A. McCauley, until it shall have been fully administered, is the administrator de bonis 'non, and all the rights of recovery which exist for the benefit of that estate are vested in him for the benefit of creditors, if there shall turn out to be any creditors, and if there are no creditors, as is alleged in the complaint, then for the benefit of the next of kin who will receive the estate in due course of administration from the plaintiff.” See Dunne v. Am. Surety Co., 43 App. Div. 100. I am inclined to think that there is sufficient evidence to sustain the material allegations of the complaint, and that, under the law of the case, as laid down by the Appellate Division, the plaintiff is entitled to judgment.

Judgment for plaintiff.  