
    Matter of the Estate of Ransom L. Pond, Deceased.
    
      (Surrogate’s Court, Otsego County,
    
    
      February, 1903.)
    Compulsory Accounting of Executors—Statute of Limitations as Affected by Infancy—Code C. P., §§ 382/396, 414.
    The fact, that more than six years have elapsed since accrual of the right to compel executors to account, does not bar an infant legatee and heir-at-law of the decedent from having such a proceeding taken in her interest, and this because the time of the disability arising from her infancy is not a part of the six years and the statute has never begun to run against her.
    Proceeding to compel executors to render their accounts for judicial settlement.
    L. F. Raymond, for petitioner; C. C. Flaesch, for executors.
   Willis, S.

This proceeding was commenced by a verified petition presented to this court by Maria W. Toumans, in behalf of Mary Ella Wendell, an infant of the age of fifteen years. The petition, among other things, states that the said Maria W. Toumans is a grandmother of the said infant, that the said infant resides with said Maria W. Toumans, and that the said infant is a granddaughter, legatee and heir-in-law of said Ransom L. Pond, deceased, and is interested in the estate of said decedent.

The executors have appeared herein, and filed a verified answer, by which none of the allegations contained in the petition are put in issue.. As their sole defense herein they allege: That the cause of action in this proceeding alleged in said petition, did not accrue within six years before the commencement of this proceeding, and that this proceeding is, therefore, barred by the six years’ Statute of Limitations, and cannot be maintained.”

The same rule of limitation applies to this proceeding as in an action. Church v. Olendorf, 19 N. Y. St. Repr. 700; Matter of Rogers, 153 N. Y. 316.

The chapter of the Code relating to the subject is entitled “ Limitations of the time of enforcing a civil remedy,” and by section 414 it is expressly applied to a special proceeding. Therefore, while the provisions of section 382 of the Code of Civil Procedure require a proceeding of this nature to be commenced within six years from the time when the right to institute the same accrues, yet in this proceeding the facts stated in the petition bring the case within the provisions of section 396 of the Code of Civil Procedure, which provides that: “ If a person, entitled to maintain an action specified in this title * * * is, at the time when the cause of action accrues, within the age of twenty-one years * * * The time of such a disability is not a part of the time limited in this title for commencing the action.” The person in whose behalf the petition is presented herein being within the express exception of the statute by reason of her infancy, it follows that the Statute of Limitations has never commenced to run as against this infant, and affords no answer, whatever, in this proceeding. Matter of Rogers, 153 N. Y. 321.

Mo reason appearing why these executors should not render an account of their proceedings, an order may be entered directing said executors to file their account in this court.

Decreed accordingly.  