
    Matter of the Estate of Patrick Mahoney, Deceased.
    
      (Surrogate’s Court, Sullivan County,
    
    
      March, 1902.)
    ADMINISTRATION-PREFERENCE OF A JUDGMENT FOE COSTS RECOVERED Against a Pi.atntiff-Administbatbix — Leave to Issue Execution.
    A judgment for costs, recovered against an administratrix in an unsuccessful action brought by her in her representative capacity against a person to recover of him a debt which she believed to have been due her intestate in his lifetime, is entitled to a preference over debts due general creditors of the intestate as it is to be regarded as an expense of administration.
    The surrogate therefore granted the judgment creditor leave to issue execution against the administratrix in her representative cacapity for his pro rata share of the assets applicable to preferred claims and found to be or to have been in her hands.
    Such a judgment is not a “ debt ” of the intestate nor is tlie judgment creditor a “ creditor ” of the estate, within Code C. P. §§ 2719 and 2722.
    Application by a judgment creditor for leave to issue execution.
    Charles H. Stage, for petitioner.
    John D. Lyons, for administratrix.
   Smith, S.

— This matter was first before the court on an application made by William Jones, who had obtained judgment against Mary Mahoney as administratrix of said Patrick Ma-honey, deceased, to compel the administratrix to pay the said judgment, and it was decided in that proceeding that a party holding a judgment against an administratrix recovered upon a claim which did not exist at the time of the decedent’s death was not a creditor of the estate within the meaning of section 2722 of the Code, following the cases of Hall v. Dusenbury, 38 Hun, 125; Matter of Foley, 39 App. Div. 248.

The judgment creditor now makes this application for leave to issue execution upon this judgment pursuant to sections 1825 and 1826 of the Code of Civil Procedure. An accounting has been had upon such application pursuant to section 2725, subdivision 1 of the Code of Civil Procedure, and petitioner’s right to the relief demanded depends upon the condition of such accounts and whether or not there are any assets in the hands of the administrator applicable to the payment of his judgment. The first inquiry to which our attention must be directed relates to the class of claims to which the judgment of this petitioner belongs. The Code provides that where it appears that the assets after payment of all sums chargeable against them for expenses and claims entitled to a preference as against the plaintiff will not be sufficient to pay the claims of the class to which plaintiff belongs in full the sum directed to be collected by the execution shall not exceed the plaintiff’s just proportion of the assets. § 1826.

Petitioner’s claim is a judgment for costs recovered in an action brought by the administratrix on a claim alleged to be due decedent in his lifetime. To which class of claims does it belong? The condition of the assets is such that if it must come in with the general creditors of the decedent there will be little or nothing to pay it from, while if it is allowed equality with the other claims and expenses incurred in the administration of the estate it will receive a large percentage on the distribution. It is not included among the debts ” mentioned in section 2719 because the owner of it is not a creditor of the estate as has already been shown. Hall v. Dusenbury, supra; Matter of Foley, supra. It is not'controlled by the provision of section 2719 to the effect that commencement of a suit for the recovery of a debt or the obtaining a judgment thereon against the administrator or executor shall not entitle such debt to preference over others of the same class. There was no debt here against the administratrix; section 3246 requires the judgment to be collected out of the estate and while I find no express provision of law which points out just what class of claims it belongs to or what priority of payment shall be given it, I am of the opinion that it should have preference over general creditors of the estate and 'be paid as a part of the proper and necessary expenses of administration. The representative brings action upon a claim which she has good reason to believe is justly due the estate. The action is tried and results in a judgment against her for costs. Her own expenses and disbursements are proper charges as expenses of administration. Would it be equitable or just to compel the party sued and who was successful in his defense to take his chances for his legitimate costs with the general creditors of the estate, which in many instances, as in this case, would prevent him from recovering anything on the judgment? I cannot see it in that light and must rest my decision in this proceeding upon those cases which hold the contrary view. See Shields v. Sullivan, 3 Dem. 296; Matter of Randell, 8 N. Y. Supp. 652; Matter of Casey, 6 id. 608; Columbian Ins. Co. v. Stevens, 37 N. Y. 536.

The petitioner’s judgment, being entitled to preference over the general creditors of deceased, it is no answer to the application to say that the administratrix has paid the debts in full and thus disposed of the assets of the estate. Such payments are made at her peril and she must still respond to the persons entitled thereto for the funds so distributed. The .account and proofs filed in this proceeding show that the administratrix received personal property belonging to the estate of the value of $560. She has paid for funeral expenses, which have preference, $55. She has paid out for other expenses of administration, $21.50 on application for letters. She has paid $32 for taxes, and her commissions are $28 and .she is entitled to exempt property as shown by the account of $180; making a total of $322.50, and leaving a balance in her hands of $237.50 applicable to petitioner’s claim and the claim of her own attorney for costs in said suit; both of which .are entitled to share equally in the distribution. The- amount to which the petitioner is entitled on such pro rata distribution of the assets remaining as above is the sum of $135.60, and an order may be entered directing execution to issue against said administratrix for such amount. •

Decreed accordingly.  