
    Matter of the Judicial Settlement of the Accounts of James O'Brien, as Executor, Etc., of Ellen O'Brien, Deceased.
    (Surrogate’s Court, New York County,
    November, 1900.)
    Executor and administrator — Eight of unpaid judgment creditor to open the settlement of the executor’s accounts suspended by a reversal of the judgment.
    Where a judgment, under which an unpaid creditor of an estate procured the opening of the settlement of the accounts of the executor, is reversed and a new trial granted, the creditor becomes merely a creditor holding a disputed claim, and, where his right to compel an accounting has become barred by time, the order opening the settlement of the accounts of the executors must be vacated, without prejudice, however, to a further application by the creditor should he again recover judgment.
    Motion by an executor to vacate an order opening a decree, settling the accounts of the executor, and permitting the petitioner to file objections thereto.
    Abram Kling, for executor.
    Davies, Stone & Auerbach, for Daniel J. Early, receiver.
   Thomas, S.

The order of March 9, 1900, vacating the decree rendered in 1888 on the accounting of the executor, and admitting the petitioner to intervene and file objections to the account, was proper on the facts then existing, the material circumstances being that a judgment had been obtained by the petitioner which was then in full force. The Statute of limitations was held not to bar the remedy for an accounting, because that remedy, as a means for enforcing his judgment, did not accrue to the petitioner until the judgment was obtained, and the decision in Matter of Grail, 40 App. Div. 114, 42 id. 255, was referred to as the controlling authority. Since the granting of that order the judgment which was its foundation has been reversed and a new trial ordered, and the petitioner now stands as a person claiming to be a creditor, holding a disputed claim not yet in judgment. As such,-his remedy to compel an accounting was long since barred. Matter of Van Dyke, 44 Hun, 394. The motion to vacate the order heretofore made must, therefore, be granted, but without prejudice to any further application after .the recovery of .a judgment. The motion to compel the filing of an inventory is denied, also without prejudice.

Decreed accordingly.  