
    In the Matter of the Accounting of Dorothy A. Roy et al., as Executors of Ferdinand P. Roy, Deceased.
    Surrogate’s Court, Nassau County,
    April 26, 1961.
    
      
      Harry Rosenberg and David Blottner for executors. Theodore H. Beyer for Meenan Oil Co., petitioner.
   John D. Bennett, S.

This is a proceeding for a compulsory accounting in which the petitioner is an alleged creditor of the decedent. The respondent executors have filed an answer denying the status of the petitioner as a creditor.

The evidence offered by the petitioner to support its position as a creditor must prove the existence, prima facie, of a debt owing by the estate to the petitioner. The question has been raised whether decedent did business with petitioner as an individual, or whether decedent dealt with petitioner on behalf of a corporation.

Petitioner’s proof on this point rests on the testimony of its credit manager, and on two customer acceptance cards and three ledger cards introduced in evidence by petitioner.

An examination of the ledger cards pertaining to the account in question discloses that on the top of each card appears the name of Boy’s Diner Inc.

The name and address printed on the customer acceptance card, which constitutes the contract between the parties, is Boy’s Diner Inc. On the line below appear the words “ Customer’s Signature ”, followed by the signature Ferdinand P. Boy.

The credit manager’s testimony is to the effect that the reference to Boy’s Diner Inc. was only as an indication of the address of the premises to which oil was to be delivered, and that petitioner dealt with Ferdinand P. Boy as an individual.

The credit manager testified that he was not present when the customer’s acceptance card was signed. Accordingly, the question of the intent of the parties at the time of the signing of the acceptance card remains unsettled, the petitioner having failed by the evidence to prove prima facie a contractual relationship between itself and this decedent as an individual. Therefore, petitioner has failed to establish its status as a creditor of the estate entitled to compel the executors herein to account.

The petition is dismissed on the grounds stated herein.  