
    William Sperb, Jr., as Administrator, etc., Resp’t, v. Henry T. McCoun, Jr., Impleaded, etc., App’lt.
    
      (Court of Appeals,
    
    
      Filed October 26, 1888.)
    
    1. Practice — Surrogate has power to direct administrator whose LETTERS HAVE BEEN REVOKED TO PAT OVER FUNDS ON PETITION OP SURVIVING ADMINISTRATOR—Code Civ. Pro., §§ 2603 and 2606.
    The plaintiff and one Beach were appointed administrators of the estate of one D., who died intestate. The administrator’s bond was executed by the plaintiff, said Beach, Mitchell and the defendant McCoun, unto the people of the state and was joint and several. Subsequently Beach acting as administrator misapplied over $1,000 of the estate’s funds, and absconded from the state. Upon the petition of the plaintiff the letters of administration issued to Beach were revoked. Beach having failed to ■ pay over the amount which it was found that he owed the estate, the surrogate directed that the bond aforesaid, be assigned to the plaintiff as administrator, and that he be permitted in behalf of said estate and of the person interested therein, to maintain an action to recover the amount decreed to be paid to him by the said Beach. Held, that under Code Civil Procedure, §§ 2603 and 2606, the surrogate had authority upon the petition of the plaintiff, as surviving administrator, to compel Beach to ac- ' count for and deliver over the funds of the estate which he had received, to the plaintiff.
    2. Same—Administrator can maintain action on bond of absconding co-administrator—Code Civ. Pro., § 2607.
    The decree for the payment and delivery of. the funds to the plaintiff having been made, and the execution upon the decree having been returned unsatisfied, the plaintiff was authorized by Code Civil Procedure, § 2607, to maintain an action upon the official bond to recover the sum thus decreed to be paid to him.
    3. Same—Administrator an aggrieved party within Code Civil Pro., § 2609.
    Within the meaning of Code Civil Procedure, § 2609, the plaintiff in his representative capacity is a person aggrieved, and upon that theory could maintain this action.
    4. Same — Liability of administrator personally not a defence — Surety has action over against him personally.
    As his surety the defendant is bound to answer for the default of Beach, so that the money misappropriated may be made good to the estate, and after he had paid the surety he may take his remedy, if he has any, against the plaintiff individually as one of his principals for indemnity. Boyle v. St. John, 28 Hun, 454, followed, and JJanz v Oakley, 37 id., 495, distinguished.
    In July 1883, Gilbert Dunspaugh died in Queens county intestate, and in November of the same year the plaintiff and one Burton T. Beach were appointed administrators of his estate. The administrators’ bond, duly approved and filed, was executed by William Sperb Jr., Burton T. Beach, Benjamin G. Mitchell and Henry T. McCoun Jr., unto the people of the state of New York in the sum of §4,000, and was joint and several. The condition thereof was “that if the above bounden William Sperb Jr., and Burton T. Beach shall faithfully execute the trust reposed in them as the administrators _ of all and singular the goods, chattels and credits of Gilbert Dunspaugh, late of the town of North Hempstead, in the county of Queens, deceased, intestate, and obey all lawful decrees and orders of the surrogate’s court of the said county of Queens touching the administration of the estate committed to them, then the obligation to be void, else to remain in full force and effect.”
    Subsequently Beach, acting as administrator, misappropriated §1,332.66, of the estate funds and absonded from the state. On the 2d. day of November 1885, upon the petition of the plaintiff, his co-administrator, the surrogate of Queens county made an order revoking the letters of administration issued to Burton T. Beach. The plaintiff thereupon as sole remaining administrator began proceedings against Beach for an accounting upon which it was found that Beach had received the sum above stated and had failed to pay over the same, and on January, 28, 1886, the surrogate made a decree directing Beach to pay to the plaintiff as sole remaining administrator the money so received by him, to wit; the sum of $1,332.66, and $101.50, costs and disbursements. This decree was duly docketed in the proper counties and executions were issued to those counties and returned unsatisfied.
    
      On June 10, 1886, upon a petition by the plaintiff as sole remaining administrator, showing the foregoing facts, and that the amount decreed to be paid was still wholly unpaid, the surrogate made a decree “that the bond given by the said Burton T. Beach, as principal, with Henry T. McCoun, Jr., and Benjamin G-. Mitchell, as sureties, upon the appointment of the said Burton T. Beach as administrator, etc., be, and the same hereby is, assigned to the said William Sperb, Jr., as administrator, etc., and that he be, and hereby is, permitted to maintain in behalf of the said estate and the persons interested therein an action thereon to recover the said amount of $1,434.16, duly decreed to be paid to him by the said Burton T. Beach.” Thereupon the plaintiff began this action. The defendant answered, admitting the decease of the intestate, the giving of the bond and the appointment of the administrators as alleged in the complaint, and he alleged that he had no knowledge of the other facts set forth. The cause came on to be tried at a circuit, and all the facts alleged in the complaint were proved and no exception was taken to the evidence.
    When the plaintiff rested, the defendant moved to dismiss the complaint on four grounds, as follows:
    
      First. The plaintiff has not proved a cause of action against the defendant McCoun.
    . Second. The plaintiff has sued both the defendants Mitchell and McCoun, and it appears that the defendant Mitchell has not been served with process and does not appear in the action.
    
      Third. The plaintiff, himself a party to the bond, is suing to collect from another party to the same bond.
    
      Fourth. The plaintiff is a principal on the bond and cannot sue defendant on it, who is his surety thereon.
    The motion was denied and defendant excepted. No evidence was given by the defendant, and thereupon the plaintiff moved for judgment, which motion was granted, and the jury were directed to find for the plaintiff the sum claimed, to which direction the defendant excepted.
    Judgment having been entered, defendant appealed therefrom to the supreme court, general term, second department, where the judgment was affirmed and he then appealed to this court.
    
      L. H. Arnold, Jr., for app’lt; William Henry Arnoux, for resp’t.
   Earl, J.

It is not questioned that the surrogate had power to revoke the letters of administration issued to Beach, and we are of opinion that the other proceedings in- the surrogate’s court were regular and valid. Under ( sections 2603 and 2606 of the Code, the surrogate had' authority, upon the petition of the plaintiff as surviving administrator, to compel Beach to account for and deliver over the funds of the estate which he had received, to the plaintiff.

The decree for the payment and delivery of the fund to the plaintiff having been made, and executions upon the decree having been returned unsatisfied, he was authorized by section 2607 of the Code to maintain an action upon the official bond to recover the sum thus decreed to be paid to him. If necessary for the maintenance of this action, we think the provisions of section 2609, could also be invoked in plaintiff’s favor. Within the meaning of that section, he, in his representative capacity, is a person aggrieved, and upon that theory, could maintain this action.

We do not deem it important now to determine the precise relation which the plaintiff individually, as one of the principals in the bond, bore to the sureties in reference to the default of Beach. We will assume, as most favorable to the appellant, what has apparently been decided in some cases, that he, as one of the principals, will be bound to indemnify the appellant for any sum which may be recovered against him on account of the default of Beach (Babcock v. Hubbard, 2 Conn., 536; Brazier v. Clark, 5 Pick., 96; Overton v. Woodson, 17 Mo., 455), and yet we are of opinion that, as administrator, representing the estate, he can maintain this action. As against the plaintiff suing in his representative capacity the defendant cannot set up as a bar to the action, any counter-claim or defense which he has against him, as an individual. As sureety, the defendant is bound to answer for the default of Beach, so that the money misappropriated may be made good to the estate; and after he has paid, as surety, he may take his remedy, if he has any, against the plaintiff individually, as one of his principals for indemnity. In this way the estate will be protected by the bond, and the defendant as surety, will have all the indemnity which the law gives him. And so it was held in Boyle v. St. John, 28 Hun, 454.

The case of Nanz v. Oakley (37 Hun, 495), is not in conflict with the case of Boyle v. St. John. In that case the decree of the surrogate directed the defaulting co-administrator to pay money misappropriated by him to the administrator of his co-administrator, and that administrator assigned the claim to the plaintiff in the action, and there it was held that the action was, m effect, one brought by a principal against his own "surety, to recover damages for the wrongful act of his co-principal, and that the action could not be maintained. The case was as if this plaintiff had instituted this action as an individual, to whom the defaulting administrator had been ordered to make payment as the party aggrieved; and as we have stated, if the action had been of that character, it could not have been maintained.

We therefore, see no reason to doubt that this case was properly disposed of in the courts below, and that the judgment should be affirmed, with costs.

All concur.  