
    In the Matter of the Estate of Adolphus F. Ockershausen, Deceased.
    
      (Superme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Executors and administrators—Accounting—Premature order.
    On an accounting as survivor of a firm by one who was also an executor of his deceased partner, the account showed that one of the heirs was entitled to a certain sum as his share of loss on a sale of the firm real estate, but an offset was claimed on other transactions. At this time proceedings were pending for a geneial account by the executor and an action to determine the balance due from him as surviving partner. Eeld, that an order to pay the whole of the sum mentioned to the heir was premature.
    Appeal from order of the surrogate of Richmond county, directing the executor, as surviving partner of the firm of Ockershausen Brothers, to pay to petitioner the sum of $842.10.
    
      Charles P. Buckley, for ex’r, app’It; William M. Mullen, for petitioner, resp’t.
   Barnard, P. J.

—The appellant, George P. Ockershausen, is the executor of the last will and testament of Adolphus F. Ockershausen, deceased. By the terms of the will the estate of deceased was given to the testator’s four children equally, except that the share of the respondent, Henry A. Ockershausen, was charged with an advancement of $10,000.

The whole estate was subject to a life estate, which has expired. The case shows that the executor was called to account, and that in the accounting proceedings before a referee, the executor, who was one of the firm of Ockershausen Brothers, was required to file an account of his discharge as surviving partner, and he did so, and in this account he stated that Henry A. Ockershausen, the respondent, would be entitled to one-fourth of the loss in certain real estate sold by the executor belonging to the firm, and this amount was stated at $842.10. In this account the executor claimed an equitable offset against this balance to the amount of $700 on a railroad stock transaction,' the merits of which do not appear.

The surrogate ordered the payment of the entire balance of $842.10 to be paid to Henry A. Ockershausen. The order was premature. There was no admitted general balance, and nothing but a general adjustment could determine the rights of the several parties.

There is a proceeding pending for a general accounting of the executor, and an action at law also pending to determine the balance due from the executor as the surviving partner of the firm of Ockershausen Brothers.

The order should be reversed, with costs and disbursements, and the application denied without prejudice to the rights of the parties as they will be shown by the final accounting.

Dykman and Pbatt, JJ., concur.  