
    William Pierpoint, Plaintiff, v. Ellen T. McGuire, asAdministratrix, Defendant.
    (New York Common Pleas—General Term,
    June, 1895.)
    An allegation of the recovery of a judgment against an assignee for the ■benefit of creditors is a sufficient pleading of the indebtedness in an action against the surety on the assignee’s bond.
    A demand is not necessary where a judgment has been recovered against the assignee.
    An objection that the order giving leave to sue on the bond was invalid on the ground that the date of the entry of judgment as stated in the petition therefor was different from that of the judgment on which the complaint was based should be taken by motion, and cannot be taken for the first time on appeal.
    The inventory made by the assignee is prima fade evidence of the facts-therein set forth.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict directed at Trial Term, exceptions to be heard in the first instance at the General Term.
    Action upon the bond of a surety for an assignee for the benefit of creditors.
    
      Thomas J. McKee, for defendant.
    ' 8. M. Hitchcock, for plaintiff.
   Bookstaver, J.

This action is against the defendant, as administratrix, etc., of John T. McGuire, deceased, who was. one of two sureties upon a bond executed and approved ¡November 1, 1882, conditioned for the faithful performance by George Barker, as assignee under a general assignment, of his duties as such assignee, and that he should duly account for all moneys received by him.

Thereafter, upon a petition made by the plaintiff herein, an order was entered December 7, 1883, requiring the said George Barker" to make and file an account of all his proceedings as assignee. In compliance with this order, on December 28, 1883, Barker filed an account as directed, and on January 4, 1884, an order was entered directing that the account be referred to a referee to take and state the same.

Upon the referee’s report an order was made December 16, 1885, which was entered as a judgment October 3, 1887, directing among other things that the costs of the proceeding ($361.66) be paid by George Barker personally, and that he pay on demand to the plaintiff herein the sum of $530.76, together with interest on $400, part thereof, from January 2, 1885, at six per cent per annum.

This action was originally brought against John T. McGuire, and on his death it was revived against his administratrix upon plaintiff’s motion.

The case of People v. White (28 Hun, 289) is almost upon all fours with the case at bar. It was there held that a judgment against the assignee is prima faoie evidence against the indemnitor, whether he received notice of the proceedings or not, but he may be let in to show that the principal had a good defense to the claim. Bridgeport Ins. Co. v. Wilson, 34 N. Y. 275. The Avant of notice does not go to the cause of action. Id. Defendant’s motion to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action was properly denied. The recoArery of the judgment being set out was a sufficient pleading of the indebtedness.

Demand is not necessary where a judgment has been recovered against the assignee. Code Civ. Proc. § 1891. But if it were, execution was duly issued and returned unsatisfied, which was a good demand. Mere delay does not relieve the surety from liability. People v. White, supra. The defendant by answering has waived all objections to the complaint, except the objection to the jurisdiction of the court, and that the complaint does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 499.

The objection that the petition for leave to sue recited a judgment entered March 21, 1887, while the complaint is based upon a judgment entered October 3, 1887, and that the order granting leave to sue Avas, therefore, invalid, should have been taken by motion (Code Civ. Proc. § 1892), and at most it was but a clerical error which could have been corrected had plaintiff’s attention been directed to it, and it is too late now to raise the objection.

The procedure followed by the plaintiff in bringing this action is authorized by title 4, chapter 15, article 2 of the Code of Civil Procedure, and section 1915 of the same, under which leave to sue may be granted to any creditor (Matter of Stockbridge, 10 Daly, 33), and these provisions of the Code, having been passed in 1880, seem to have superseded chapter 466, section 9, Laws of 1877. The inventory was a material part of the judgment pleaded, and as such was gyri/ma facie evidence of the facts therein set forth. The other objections noted in defendant’s points either were not raised upon the trial and are not the subject of review, or have already been answered.

No error appearing, the exceptions are-overruled and judgment for plaintiff as directed below, with posts.

Bisohoff and Prtor, JJ., concur.

Exceptions overruled and judgment for plaintiff as directed below, with costs.  