
    In the Matter of the Estate of Adolphus F. Ockershausen, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    1. Executors and administrators—Contempt.
    Before an executor or administrator can be adjudged guilty of contempt in failing to pay over money as directed by the surrogate, it must be shown that a demand for payment was made, or his absence or concealment or some other reason why a demand would be impossible or difficult.
    2. Same—Defense.
    Where the debt is not fiduciary in its origin and does not rest in tort, inability to pay the sum demanded is an answer to a motion to punish for contempt in not paying.
    Appeal from order of surrogate, adjudging appellant guilty of contempt.
    On petition of the executor of the widow of the deceased, the surrogate on September 10, 1890, made an order requiring the executor of this estate (the appellant) to forthwith pay to petitioner (the respondent) $842.10, the same being the amount apparently due to said petitioner from said executor, for his portion of the loss on real estate incurred by said executor as surviving partner of the firm of Ockershausen Brothers.
    This amount not having been paid, on 20th September, 1890, an order to show cause was issued returnable 24th September, 1890. This was granted on affidavit showing service of order of 10th September, 1890, and affidavit showing non-compliance. Upon the hearing the surrogate adjudged the appellant in contempt, fined him the amount so directed to be paid and costs and directed his commitment until the same was paid. Ho proof was given that any demand for the money was made.
    
      Charles P. Buckley, for app’lt; Wm. M. Mullen, for resp’t.
   Pratt, J.

The moving papers do not show a demand upon the executor for payment, which has been held to be necessary before a proceeding in contempt can be maintained. McComb v. Weaver, 11 Hun, 271.

There is no allegation showing absence or concealment of. the debtor, or any other reason why a demand would be impossible or difficult.

We see no reason why the general rule requiring a demand should be departed from in this case.

The indebtedness in the present case has none of the features of a tort. It is not for money which the executor has received, and for which he fails to account. It is for a debt alleged to be owing from him to the estate. If the debt is due, and the set-off claimed does not exist, it might support a decree against him upon which an execution could issue.

After the return of the execution if defendant had money in his hands which, after an order duly made, he unjustly refused to apply upon the debt, an order punishing him for contempt may be made. That is not in this proceeding.

The papers show that appellant is insolvent and unable to pay the amount decreed. Where the debt is not fiduciary in its origin, does not rest in tort, inability to pay the sum demanded is an answer to the motion to punish for contempt in not paying.

Order reversed; with costs of both courts to appellant.

Barnard, P. J., and Dykman, J., concur.  