
    BIEDER v. STEINHAUER.
    
      N. Y. Supreme Court, Seventh District ; Special Term,
    
    
      April, 1885.
    Action on Bond.—Guardian of infant ; liability of sureties ; ACCOUNTING BEFORE SUIT.
    An action upon the bond of a general guardian will not lie against the sureties until there has been an accounting or some other adjustment of the liability, or unless some special circumstances exist . to take the case out of the general rule.
    It does not establish that the amount of the guardian’s liability has been fixed, to show that he has received a certain amount of money, and has not paid it to the infant, no demand having been made, and the infant, by reason of his infancy, not being entitled to receive it. The necessity of an accounting is not dispensed with by the facts that the guardian has died leaving no assets and that no administrator has been appointed who can be called to account under Code Civ. Pro. § 2606.
    Trial by the court upon agreed facts.
    The action was brought by Edwin J. Bieder, by his guardian, against George Steinhauer and Nelson Moore, executor of the last will, &c. of Linus Moore, as sureties upon a bond given by one John Bieder for the faithful performance of his duties as guardian of the plaintiff, an infant. It was admitted that John Bieder, while acting as such guardian, received and receipted for, in that capacity, certain specified moneys ; that he died a pauper ; that no administrator ■ of his estate was ever appointed, and that he left no assets or estate so far as the parties to this action could discover ; that he had never filed any. inventory of the property of his ward, nor rendered any account of the money or property received by him, and that he never paid to the infant any of said money received as such guardian.
    
      
      Fanning & Williams, for the plaintiff.
    I. That no accounting was had by the guardian Bieder is no bar to this action. As the guardian left no estate there was no need of administration or accounting (Carow v. Mowatt, 2 Edw. Ch. 65, 66; Farnsworth v. Oliphant, 19 Barb. 30 ; Andrade v. Cohen, 32 Hun, 227; Cuddeback v. Kent, 5 Paige, 92; Trust & Deposit Co. v. Pratt, 25 Hun, 26 ; Girvin v. Hickman, 21 Hun, 316; Salisbury v. Van Hoesen, 3 Hill, 77; Hood v. Hood, 85 N. Y. 576, 577; Code, § 3339).
    II. Code Civ. Pro. § 2610, does not apply to sureties on a bond, executed before the Code took effect.
    III. The order of the surrogate authorizing prosecution of bond is sufficient (Estate of Hamlen, 1 Tucker, 408 ; 3 R. S. [6 ed.] 168, § 9 ; Code Civ. Pro. § 2473; Bearns v. Gould, 77 N. Y. 455 ; Brown v. Balde, 3 Lans. 284).
    
      W. A. Sutherland, for the defendant.
   Rumsey, J.

The sole question presented upon this action is whether it will lie against the surety upon the bond of a general guardian, without an accounting by the guardian, and after his death, when no personal representatives of his estate have been appointed and lie left no assets, so far as the parties have been able to discover. I think that it may now be regarded as settled that an action upon the bond of a general guardian or an administrator will not lie against the sureties without there has been an accounting or some other adjustment of the liability or some special circumstances exist to take the case out of the general rule (Hood v. Hood, 85 N. Y. 561 ; Girvin v. Hickman, 58 How. Pr. 244; 21 Hun, 316).

It may be that Hood v. Hood goes further than this, and holds that the action will not, in any event, lie without an accounting, but I do not think it is necessary to examine that question now. In this case there was no accounting. Nor has the amount of the guardian’s liability been fixed in any way.

It is true, the guardian received a certain amount of money and he has not paid it to the infant. But he was not in default for not paying the money to the infant, for the infant is not yet of age and entitled to receive it. It, was never demanded of the guardian, and surely he was not in default for not paying it over. It cannot be assumed, as against the sureties, that the principal has been in default, but the fact must in some way appear. In Girvin v. Hickman (21 Hun, 319) it was conceded that the guardian had wrongfully converted the money of his ward to his own use, and because of that fact it was held that the default appeared. In Brown v. Snell (57 N. Y. 286) the guardian had rendered his account and admitted a sum due, and that was held to establish the default. In Hood v. Hood (85 N. Y. 561) it appeared that the executors had received the .assets, but the court held that that fact alone did not establish the default without an accounting.

But the plaintiff claims that there are special circumstances because of which this action will lie. These are, that there is no administrator of the deceased guardian who can be called to account under section 2606, Code of-Civil Procedure. But the plaintiff may compel the appointment of an administrator (§ 2660), and when such administrator is appointed the surrogate may require him to account '(§ 2606). Such was not the case before the first day of September, 1880 (Farnsworth v. Oliphant, 19 Barb. 30). There is now no necessity of the new guardian coming into a court of equity togetthe accounting, andfor that reason the case of Carow v. Mowatt (2 Edw. Ch. 57) does not apply.

I can see no reason for taking this case out of the general rule which is that an account must be taken before the sureties are sued.

The decree of the surrogate will be conclusive upon the sureties (Gerould v. Wilson, 81 N. Y. 573). The account in Brown v. Snell (57 N. Y. 286, 298) as to which Judge G-bay held that the sureties were not bound, was a voluntary account and not the result of a decree.

The complaint must be dismissed for the reasons above stated.  