
    Alexander Annett, administrator, &c. plaintiff and respondent, vs. Thomas Kerr et al. defendants and appellants.
    1. No action at law can be brought upon a bond given to the people of the state, as a bond, except when authorized by the obligees; in other words, by statute or equivalent authority.
    2. No special equity is presented by a case where the only facts appealing by the complaint, in an action upon an administrator’s bond, are a revocation of the letters of administration; a decree against the administrator, on an alleged final accounting, the return of an execution on such decree unsatisfied, an assignment of such bond-to the parties in whose favor the decree was made, and an assignment of it, by them, to the plaintiff.
    3. The action upon such a bond should be brought in the name of the people. The assignee cannot bring an action thereon, in his own name, as the real party in interest, under the Code.
    4. Even if such a bond can be prosecuted by the assignee thereof, in his Own name, the complaint should be dismissed if there is no sufficient evidence adduced on the trial of the amount for which the administrator was responsible. Evidence of payments by him to the next of kin, and losses of money by theft, should be admitted in exoneration of his liability.- He is also entitled to be credited with his wife’s share of the estate.
    5. The sureties in an administrator’s bond can only be made liable for the disobedience of the administrator to lawful orders of the surrogate.
    6. Unless the authority (whatever it may be) of the surrogate has to decree the payment by an administrator, after his removal, of the assets in his hands to his successor be derived from some other source than the right of the latter to an account, a decree directing him not only to render an account of his proceedings as 'administrator, but to show cause why the assets in his hands should not be paid over to the latter, is, so far as relates to any direction made-thereon for payment by the removed administrator of such sssets to his successor, void for want of jurisdiction.
    7. The enforcement of the delivery, by a removed administrator, to his successor, of assets in his hands,’ is not among the powers of the Surrogate enumerated in any statute; nor is it incidental to the exercise of any enumerated power.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October 22, 1864;
    decided December 31, 1864.
    This was an action against the defendant Kerr as administrator of John Strahan, deceased, and his sureties on his bond to the people of the state given on the issuing of letters of administration to him, in 1858. It was conditioned “faithfully to execute the trust reposed in such administrator, and obey all orders of the surrogate of the county of New York touching the administration of” the decedent’s estate. In January, 1862, such administrator applied to the surrogate finally to settle his account as such, and after the issuing and service of a citation on the parties interested, filed his account, in April following. In J une following, (9th,) exceptions were filed to such account on behalf of the widow and next of kin of the decedent. Some time between that time and the 13 th of the same month, but when, does not appear by the case, the defendant Kerr was removed as administrator, on the application of his present co-defendants, (Perry and Thompson,) his sureties on his bond. At the last date the plaintiff was appointed administrator in his place, and three days afterwards (16 th June) applied to such surrogate, by petition, to compel the defendant Kerr to “render an account of his proceedings as administrator, and show cause why the assets in his hands as ” such “should not be paid over ” to the petitioner. In the beginning of July following, the attorneys for the plaintiff and the defendant Kerr stipulated in writing to bring on the settlement of the matters involved in such petition on the 15th of ■that month, and the same' attorneys, with the attorney for a special guardian of one of the next of kin of the decedent, agreed to allow the amount previously filed by such administrator in April to stand as his account, and the exceptions
    
      filed thereto as exceptions of the next of kin and widow. A motion, founded on such account and exception, for such decree as the sxirrogate might think proper to grant, noticed for the 18th of December following, (1862,) was made on the 15fch of that month, without the presence of the defendant Kerr, or any one on his behalf. Such account as previously filed was then settled and adjusted by such surrogate, showing a balance in the hands of such defendant of upwards of $1800. The surrogate, by a decree containing such settlement as then made, ordered the defendant Kerr, after retaining a certain sum ($165.57) for his commissions, to pay him a certain sum ($54.50) for the costs and expenses of such proceeding, to the proctors for the special guardian before mentioned (Messrs. Matthews & Swan) .a certain sum, ($200,) and a certain other sum to the proctor for the wife and daughter of the decedent, ($100,) for their respective costs, and the residue, being a little abov.e $1300, to the plaintiff. The proof of the service of such notice of motion consisted only of the recital thereof in the decree so made by the surrogate. Such decree was docketed in the New York county clerk’s office, and an execu-. tion issued thereon to the sheriff of the same county was returned unsatisfied. The surrogate of that county, in January, 1863, ordered the administrator’s bond to be assigned to “the said John P. Groshy and others, for the purpose of being prosecuted,” and in April. following he, jointly with Messrs. Matthews & Swan and Groshy, executed a formal assignment of such bond, under seal, to the plaintiff.
    
      W. Watson, for the appellants.
    I. The court erred in denying the defendant’s motion to dismiss the complaint.
    II. The court erred in overruling the question put to the witness Matthews :• “Have you ever been paid the two hundred dollars?” “Are you not the parties in interest ?” If Matthews & Swan were the parties in interest, there was no consideration for the assignment' by them, and it was void. The cases in which an assignee is permitted to sue in his own name are those in which the assignment was for a valuable consideration. (People v. Norton, 5 Seld. 176. Cummings v. Morris, 25 N. Y. Rep. 627.) The consideration of a sealed instrument may he impeached. This the defendant offered to do, and the evidence was rejected.
    III. There was no legal assignment of the bond, and this the defendant set up in his answer. The. administrator had no power to receive an assignment from Matthews & Swan and John P. Crosby.
    1. The powers of an administrator are défined by law in sections 3 and 4, 2 R. S. 298, 4th ed. He has no power to bring suits for third persons who are entitled to money by a •final decree. He can only sue for debts due his intestate. No authority is given him to bring suits on bonds given to the people, nor to take assignments thereof in order to sue for the benefit of third persons.
    2. The surrogate assigned the bond by an order to John P. Crosby and others. “The others” did not join in the assign-? ment to the plaintiff.
    3. Matthews & Swan and John P. Crosby, being alive, are not entitled either at common law or by any statute to the aid of an administrator, in the collection of their debts due by decree. If they in fact assign their interest, the assignee may sue. If they retain their interest, and assign the bond, that another may sue for their benefit, the assignment is without consideration and void.
    IV. No action can be brought by Annett on' this bond. The surrogate had no power to decree that the money be paid or the bond assigned to the new administrator. The statute gives him no power to decree payment of money to an admin» istrator, or to any person exeept one, to whom it is due, as creditor or next of kin. (2 R. S. 281, .§§ 79, 98. Id. 300, §§ 18, 19.) The learned justice at the trial was right in this, his first impression ’, and the 21st section, that changed his views to the effect that the money collected on the bond was assets in the new administrator’s hands, has no application to this case. That section was passed in 1830, and is applica» ble to the case of revocation before final accounting and for neglect to file an inventory, and no other. The revocation involved in this case is, under the law of 1837, made upon application of the sureties of the former administrator. The 21st section of the law of 1830 is not made applicable'in such cases. It has no application after accounting. The remedy prescribed is by the law of 1837, sections 63 and 64; this was followed by the plaintiffs, as shown by the evidence. The next of kin are entitled to the money, and the bond must be assigned to them. (2 R. S. 300, §§ 18, 19.)
    Y. Neither does the case come within the 68th and 69th sections. Kerr’s final account having been filed on the 2d of April, 1862, two months and upwards before Annett’s appointment, the money so found at that time to be in Kerr’s hands belonged to the next of kin, and the. surrogate had no power but to direct it to be paid, and the bond assigned to them. (2 R. S. 300, 4th ed. §§ 18, 19. Id. 281, § 75.)
    VI. But the decree obtained by Annett is void on its face. It was obtained by false suggestions. In order to obtain a citation against Kerr, Annett states in his petition under oath, on the 13th June, 1864, that Kerr had not rendered an account. He then consents that Kerr’s account, filed on the 2d April, 1862, be taken as the basis of the decree in question, and that account is adopted. It is void because there is- no proof that the citation was served upon Kerr thirty days before the hearing a pre-requisite to jurisdiction. (2 R. S. 277, p. 92, §§ 58, 68. People v. Barges, 12 Wend. 492.) If the consent of counsel is to take the place of this service, prescribed by law, then proceedings may be conducted in such haste as to escape the notice of sureties and others who are affected by the result.
    VII. But if the decree were valid, the defendant, not being a party, and having no notice of the accounting, is not concluded by it. The statute has enumerated- in what cases the accounting shall be conclusive. (2 R. S. 4th ed. § 75, p. 279.) This enumeration does not include omissions of the administrator to claim for a loss occurring without his fault, which by statute is to be allowed in his accounts. (President of the Bank of Poughkeepsie v. Hasbrouck, 2 Seld. 216.) The cases cited, below establish the proposition that the surety may in a' collateral action avail himself of any defense that his principal omitted in the original proceeding, unless in those cases where the proceeding is made conclusive by statute. And in that case the decree may be impeached for fraud or collusion. (2 Seld. 216. Douglass v. Howland, 24 Wend. 35, 52. Jackson v. Griswold, 4 Hill, 532. 2 McCord Ch. 185. Scott v. Dorsey, 1 Harr. & John. 227, 21. Beatty v. Moore, 7 Cranch, 281. Spidden v. The State, 3 Hare & John. 251. Haslett v. Glenn, 7 id. 23. Girt v. Cockney, Id. 134. Owens v. Collinson, 3 Gill & John. 25, 39. Simkins v. Cobb, 2 Bailey, 60. Pratt v. Nathan, 5 Mason, 95, 103. Hunt v. Hapgood, 4 Mass. R. 117.)
    VIII. Executors and administrators are not liable for losses by theft. (2 R. S. §§ 56, 278. Williams on Executors, p. 1507, and cases there cited. Furman v. Coe, 1 Caines’ Cases, 96.)
    IX. Aside from the above authorities, it is inequitable that an administrator, by omitting in his accounts to claim an allowance authorized by law, should enable jiis family to recover from his sureties money for which he himself was not liable.
    
      A. Matthews, for the respondent.
    I. There ¡was no error in the court’s overruling the objection that there was a defect of parties plaintiff.
    1. The defect, if any, was apparent upon the face of the complaint, and by not demurring, the defendants have waived it. (Code, §§ 144, 147, 148. Zabriskie v. Smith, 1 Kern. 480.) (1.) The demurrer is the only remedy. (Getty v. Hudson River R. R. Co., 8 How. Pr. 177. Higgins v. Rockwell, 2 Duer, 650.) (2.) A party cannot both demur and answer. The answer supercedes the demurrer. (Struver v. The Ocean Insurance Co., 16 How. Pr. 442.)
    2. The bond was properly sued in the name of the plaintiff. (1.) The plaintiff is the real party in interest, (a.) The plaintiff might have sued without the assignment by the surrogate. (The People v. Guild, 4 Denio, 551. Baggott v. Boulger, 
      2 Duer, 160.) (2.) The assignee of a chose in action is the proper party to bring suit. If the assignment is good between the parties thereto, or the defendant is protected from any other claimant, the court will not look further into it. Cummings v. Morris, 3 Bosw. 560. S. C. 25 N. Y. Rep. 625. Myers v. Machado, 6 Abb. 198.) (a.) The consideration is unimportant. (Burtnett v. Gwynne, 2 Abb. 79. Sheldon v. Wood, 2 Bosw. 267. Byxbie v. Wood, 24 N. Y. Rep. 609. (6.) Where the assignment is absolute on its face, parol evidence-cannot be given to show the assignor retains an interest in the subject matter, and should be a party to the suit. (Durgin v. Ireland, 4 Kern. 322.) (3.) The plaintiff might have sued in his individual name, and his title of administrator may be rejected as surplusage, both as respects his original and his acquired interest. (Merritt v. Seaman, 6 Barb. 330. 6 N. Y. Rep. 168. Eagle v. Fox, 28 Barb. 473.)
    II. The' defendants, as sureties upon the bond of the former administrator, were liable, under the statute, to account to the plaintiff as administrator de bonis non; and the recovery is assets in his hands, of the estate he represents. (See act of 1837, §§ 29, 32, 33 ; Gottsberger, adm’r, v. Taylor, 19 N. Y. Rep. 150.)
    1. Sureties may apply to the surrogate for relief, (§ 29,) and the surrogate may revoke letters of administration, (§ 32,) and he must then grant new administration of the goods, chattels and credits not administered, (§ 33,) &o. (See 2 R. S. p. 77, §§ 48, 51, 52.)
    2. Where letters are revoked, the surrogate must issue new letters upon the goods unadministered, in the same manner as original letters in case of intestacy, and the new administrator must give neto bonds as in cases of intestacy, and has like powers. (See 2 id. p. 78, § 55, [45.])
    3. When letters of administration are issued, the administrator must give bonds in amount not less than twice the value of the personal estate of which the deceased died possessed. (Id. p. 77, § 43, [42.])
    4. Whenever directed by the surrrogate, the bond of a former administrator may be prosecuted, and the amount recovered is assets. (Id. p. 85, § 22, [21.])
    5. When the authority of an administrator is revoked, he may be cited to account before. the surrogate, at the instance of his successor. (Id. p. 95, § 72, [68.])
    6. The administrator, when removed, may himself cite his successor to attend an accounting and settlement, and “ such settlements and accounts shall have the like effect in all respects as in the case of a settlement at the instance of a creditor." (Id. p. 95, § 73, [69.])
    7. Whenever an account is rendered by an administrator on final accounting, the surrogate must make a decree for payment and distribution of the assets among the creditors, except where the accounting is had under the foregoing provisions, of the statute, (§§ 68 and 69,) (72 and 73) relating to administrators de bonis non. (Id. p. 95, § 75, [71.])
    III. The “third defense" in the answer was bad on its face, for want of statement of facts ; besides, no proof was offered to sustain it.
    IV. The “fourth and fifth defenses” were no defense to this action.
    V. The exceptions to the ruling of the court were not well taken. (The People v. Rowland, 5 Barb. 449.)
   By the Court,

Robertson, Ch. J.

The bond in suit in this case being to the people of the state, no action could be brought upon it, at law, as a bond, except when authorized by such obligees, in other words, by statute, or equivalent authority. In a proper equitable case an action might, perhaps, be maintained upon it as a stipulation or judicial recognizance, (Carow v. Mowatt, 2 Edw. Ch. 57,) but then only by the officer in whose hands it is deposited. (Bolton v. Powell, 14 Beav. 275. 2 De G., M. & G. 1.) Although even that has been doubted. (14 Beav. 290, 291.) The complaint in this action, however, shows only the case of a revocation of the letters of administration of the defendant Kerr, (without stating the cause,) a decree against him on an alleged final accounting, and the return of an execution on such decree, after docketing, unsatisfied. It also alleges an assignment, by the surrogate, of such .bond to the parties in whose favor such decree was made, (of whom the plaintiff is one,) and the second assignment of it by them to the plaintiff. No special equity is therefore presented by such a case.

It would seem that before the passage of the Revised Statutes, an action could be brought upon such a bond whenever any of its conditions were violated, by parties prejudiced thereby, (People v. Dunlap, 13 John. 437,) but only in the name of the people. The first question that presents itself, therefore, is, whether the plaintiff can bring an action in his own name, under the Code, on such bond, as the real party in interest. (§§ 111, 113.) The former mode of entering up judgment in a suit on a bond, for the penalty, in case of a breach, to stand as security for future breaches, being abolished, it is difficult to say how the sureties can avail themselves, in future actions for breaches of such bond, of their payment of any money recovered by the present plaintiff in this. It would seem, therefore, that the action should have been brought in the name of the people, so as to make the parties in each successive action the same, unless by statute or a surrogate’s decree the plaintiff acquired such an interest in the bond, as to entitle him to bring an action in his own name.

The statutes of this state have, however, provided for every contingency in which it might be necessary to prosecute an administrator’s bond, and regulated the prior steps for instituting an action thereon. The mere fact of so prescribing cases for such prosecution would seem, by implication, to deny the right in all others. Unless the provision of the Revised Statutes which gives to letters of administration, issued after the revocation of prior ones for the evasion by the administrator of personal service of a summons to render an account, or his remaining imprisoned a certain time for not doing so, (2 R. S. 92, § 53,) the like effect as it gives to those issued after a like revocation for. omitting to file an inventory or avoiding service of a summons to compel it, also thereby gives the right of prosecution on such bond, such statutes expressly allow such right only in the latter case. (2 R. S. 85, §21.) The right of recovery in such prosecution was by such latter provision extended to unliquidated damages for any injury to such estate by any act or omission of such removed administrator, besides the value of any property unadministered. The whole amount so recovered was to be assets in the hands of the new administrator. (Id.) Probably on account of the restricted character of such provision the legislature, the same year in which the Revised Statutes went into effect, (1830,) passed a law authorizing a surrogate to cause an administrator's bond to he prosecuted whenever he omitted to perform a decree for the payment of money, and to apply himself the moneys recovered to the satisfaction of such decree, (Laws of 1830, p. 570, ch. 320, § 23,) thus leaving the control of the proceedings with that officer. But such prosecution was still restricted to cases of decrees on rendering an account, or a final settlement or for debts, legacies or distributive shares. (Id.) But in 1837 the legislature gave accumulative and more extended remedy, (People v. Guild, 4 Denio, 551,) in every case of a surrogate’s decree against an administrator for the payment of money. (Laws of 1837, p. 535, § 65. Id. of 1844, p. 90, §§ 1,2.) But the party thereby allowed to prosecute such bond was required to have prior thereto an execution upon such decree docketed in a county clerk’s office returned unsatisfied. (Id.) No such privilege was, however, given in either of the statutes of 1830 or 1837, merely upon a revocation, as was given by the Revised Statutes. The right to prosecute such administrator’s bond at all in this case, if the statutory provisions just referred to, (People v. Corlies, 1 Sandf. 228,) are exclusive, (as the surrogate’s order is not sufficient unless based on proper proceedings, (People v. Barnes, 12 Wend. 492,) must depend on the plaintiff’s bringing it within the statutes of 1830 and 1837, since the revocation of the letters of the defendant Kerr does not appear to have been under the Revised Statutes, for omitting to render an account or file an inventory, but, by the recital in the decree, under the statute of 1837, (c/z.-460, §§29 to 32,) to have been on the application of sureties.

This case does not come within the statute of 1830, before, cited, because the decrees therein specified are only those upon rendering an account, a final settlement, or for a debt, legacy or distributive share. And although a substituted administrator may call his predecessor to account, (2 R. S. 95, § 68, extended by statute of 1837, ch. 460, § 36,) yet such accounting is expressly excepted from the cases itít which a surrogate is required to decree payment and distribution of assets on hand, (id. § 71,) and appears to be only a means of discovery of the disposition of the assets, as in case of a creditor, (id. § 86, 2 R. S. 92, § 54,) and merely auxiliary to some future proceeding, either by action on.the bond or a new application under the Revised Statutes, (vol. 2,p. 92, § 52,) by parties interested, for a final account. Unless, therefore, the surrogate derived his authority to decree a payment by the defendant Kerr of the assets in his hands to the plaintiff from some other source than the right of the latter to an account, the decree was extra .jurisdictional. Such case is in that event equally without the statute of 1837. The sureties can only be made liable for the disobedience of the administrator to lawful orders of the surrogate.

But if the bond in this case could legally be prosecuted, .the .next question which arises is, whether the plaintiff could prosecute it in his own name. That he could only do by some common law or statutory right, or the creation of an interest in him, either by the surrogate’s decree or otherwise, entitling him to administer or retain the amount recovered. (Code, § 111.) I have already shown he had no such right, and the assignment spoken of in the statute of 1837, could not have been intended to divest the people of the state of the ownership of such bond, but only gives a right of sueing thereon.' The creation of such interest depends entirely upon the decree in question legally bringing this case within the statute of' 1837, as one for the payment of money. The validity of that decree, therefore, necessarily becomes a matter of inquiry. ■ It would be a necessary subject of such investigation, notwithstanding the bond was one to be prosecuted, and in the name of the plaintiff, because the admissibility of such decree as evidence (conclusive or otherwise) is raised by the objection thereto, and the offer of evidence on the trial of this case to prove it erroneous. In actions under the statutes of 1830 and 1837, before mentioned, the amount of the unpaid decree must be the measure of the recovery.. In one under the provisions of the Revised Statutes, in case of a removal of an administrator for not rendering an account or filing an inventory, the amount of recovery is left entirely open for inquiry in the court in which the action is brought. Unless the surrogate had jurisdiction on an application by a substituted administrator for a final account by his predecessor to compel the latter to pay over what was found in his hands, he clearly had none to determine the amount, unless it was part of his general jurisdiction, or incidental to some branch thereof

The jurisdiction of the surrogate’s court,- which is a creature of statutes, is essentially special and limited’ both in the subjects over which it is exercised and the mode of its exercise, when that is prescribed. (Sheldon v. Wright, 5 N. Y. Rep. 497; S. C. 7 Barb. 39. People v. Barnes, 12 Wend. 492. Corwin v. Merritt, 3 Barb. 341. Paff v. Kinney, 1 Bradf. 1. Cleveland v. Whiton, 31 Barb. 544. Farnsworth v. Oliphant, 19 id. 30.) And that, too, notwithstanding the restriction upon the exercise of incidental powers imposed by the Revised Statutes (2 R. S. 221, § 1,) has been removed. (Laws of 1837, ch. 460, § 71. Sipperly v. Baucus, 24 N. Y. Rep. 46.) It is only, therefore, in case of the enforcement of the delivery by a removed administrator of assets in his hands to his successor, being either a specially delegated power of a surrogate, or necessarily incidental to one, that he would have jurisdiction to make a decree such as that in question, so as to bind sureties on the bond.

The Revised Statutes confer on the courts held by surrogates judicial power over eight enumerated subjects, which they declare are to be exercised in the cases and manner prescribed by the statutes of this state, (2 R. S. 220, § 1,) none of them, except the third, fourth and sixth, have any relation to an administrator’s accounts or conduct, as they only relate to proving wills, granting letters, selling real estate, guardians and dower. Such third and fourth thereof, however, are “To direct and control the conduct, and settle the accounts of executors and administrators,” and “ enforce the payment of debts and legacies and the distribution of the estates of the intestates.” The eighth is of the most vague and indefinite as well as general kind, “To administer justice in all matters relating to the affairs of deceased persons,” which, however, as well as the authority to direct and control administrators, is after all expressly limited to the cases and manner prescribed by statute. (Id.) If recourse be had to prior statutes of the state regulating the jurisdiction of surrogates, passed from 17.87 to 1828, the powers thereby granted will be found to be, as they are ably summed up in the elaborate opinion of the acting surrogate, in Re Bride’s estate, (15 Abb. 12,) comprised under thirteen heads. Those include, besides those enumerated in the Revised Statutes and incidental powers, four others, to wit: 1. Taking oaths to accounts and inventories of executors and administrators. 2. Recording wills and other documents and orders. 3. Investigating the disposition of the personal estate of decedents, by strangers. 4. Compelling the production of documents and attendance of witnesses.

The enforcement of the delivery by a removed administrator to his successor, of assets in his hands, cannot be said to be incidental to any of such enumerated powers. Such delivery would not facilitate, but if any thing rather impede, the payment of debts and legacies, or a distribution while yet unacertained. If decreed, any payment of them could only be partial and inconsistent with a final accounting on the application of other parties interested. It would be unjust to deprive executors or administrators of their commissions when removed for no fault, but at the will of their sureties, (Laws of 1837, ch. 460, §§ 29, 32, 33 ;) and it would be equally unjust to deprive their successors of commissions for taking charge of the game fund, or to charge the estate with double commissions on it. Such litigation between the new and the old administrator would settle nothing as between the latter and creditors, legatees or next of kin, either as to the amount due, or freedom from all liability. The new administrator may have a right to know how much of the estate is in the hands of his predecessor, in order to provide for debts and legacies on a final distribution, or for contingencies affecting the estate, but to order the payment to him in order that he may distribute it, is unnecessarily multiplying proceedings. All parties interested in the estate as creditors, legatees or next of kin, have a right to summon a removed administrator to account, and procure a decree against him, which, if unsatisfied, could be enforced in a suit on the bond. In case of a removal of an administrator for not filing an inventory, or for not rendering an account, it is very evident the statute does not contemplate a prior decision by the surrogate, since the extent of the recovery is designated. That such enforcement of a delivery of assets was not in this case incidental to the exercise of any enumerated power of the surrogate’s court, is evident from the surrogate’s failure to exercise any such power. The account of the defendant Kerr, as administrator, was not settled as regarded any creditor, legatee or next of kin; no debt or legacy was ordered to be paid, nor were the assets in his hands distributed. Such decree, therefore, so far as it ordered payment by the defendant Kerr, to the plaintiff, was void for want of jurisdiction.

If the account rendered by the defendant Kerr had been a final accounting, as it might have been, if it had been made upon his application, (2 R. S. 95, § 69,) it would only have been conclusive of four facts, (2 R. S. 94, § 65,) to wit: 1. The correctness of the charges in it for moneys paid to creditors, legatees and next of kin, and for necessary expenses. 2. The extent of the liability of such defendant for interest. 3. The limit of the ability to collect debts stated in such account. 4. The correctness of the allowances for decrease and charges for increase in value of assets. As these are mostly in favor of the accounting party, it is evident that, for other purposes, the settlement in the decree determined nothing as to the quantity or value of assets collected or received, or the liability of the' administrator for losses, which was therefore entirely open for new evidence. The plaintiff was bound to prove them, and the defendants were entitled to introduce contradictory evidence.

Even, therefore, if the bond could have been prosecuted, and by the plaintiff in his own name, I am satisfied it was error not to have dismissed the complaint for want of sufficient evidence of the amount for which the defendant Kerr was responsible, and that evidence of payments by him to the next of kin, and losses of money, should have been admitted.; also, that the defendant" Kerr was entitled to his wife’s share. For these reasons, independently of the right to prosecute the bond, or bring the action in the plaintiff’s name, I think there should be a new trial, with costs to abide the event. The plaintiff will then have an opportunity to apply to amend his com.plaint, if so advised, so as to make the case one of equitable cognizance, if it can be made so.

The judgment must therefore be reversed, and a new trial had, with costs to abide the event. 
      
      ) The judgment in this case was affirmed in the Court of Appeals, (35 N. Y. Rep. 256.)
     