
    In the Matter of the Estate of Peter Boyle, Deceased.
    
      (Surrogate’s Court, Cattarcrngus County,
    
    
      Filed September 23, 1889.)
    
    Executoes and administeatoes—Execution against.
    In an action brought by executors against a railroad company for the-death of their testator, a judgment for costs was recovered against them. Held, that this did not give the railroad priority over the other creditors of the estate, and that leave to issue an execution thereon against the executors should not be granted until the amount of assets and debts of the estate was established.
    Application for leave to issue execution.
    
      Sprague, Morey, Sprague & Brownell, for motion; JE. E. Northrup, opposed.
   Spring, S.

The administratrix of Peter Boyle, deceased, commenced an action in the supreme court against the Hew York, Lake Erie & Western Bailroad Company, to recover the value of certain horses belonging to decedent, and which were claimed to have been killed by the negligence of the defendant Plaintiff failed ultimately in the litigation, and a judgment for costs of over four hundred dollars was entered against her as such administratrix. Application is now made on behalf of the railroad company for leave to issue execution on this judgment to be enforced against the property of decedent.

I do not think the motion should be granted at present.

The recovery of this judgment did not give defendant any priority over the other creditors of the intestate. See Schmitz v. Langhaar, 88 N. Y., 503.

And before an execution issues, it should appear there were assets sufficient to pay all the debts of decedent, or at least an account should be filed showing fully the assets and the debts to be paid therefrom, so that the execution would direct only the application of the judgment debtor’s “just proportion of the assets” to the payment of this judgment. Sections 1825, 1826 and 2723, subd. 1, Code of Civil Procedure; Sippel v. Macklin, 2 Dem., 219; Peters v. Carr, id., 22.

In no other way can the scheme for the enforcement of judgments recovered in other courts be made practical when the execution is to be collected out of property left by a decedent.

I would require an intermediate accounting in this case, but a citation for judicial settlement has already been issued and is returnable the 17 proximo, at Salamanca, ÍST. Y., and I will accordingly postpone this matter to that time and place.  