
    Cattaraugus County.
    Hon. ALFRED SPRING, Surrogate.
    September, 1889.
    Matter of Boyle.
    
      In the matter of the estate of Peter Boyle, deceased.
    
    The recovery of a judgment for costs by a defendant against, the administratrix of a decedent, in an action brought by her to recover damages for injury by negligence to property of deceased does not give defendant any priority over the other creditors of the intestate.
    And before an execution issues in such case, it should appear that there are assets sufficient to pay all the debts of decedent or, at least, an account should be filed, showing fully the assets and debts to be paid therefrom, so that the execution would direct only the application of the “just proportion of the assets” of the estate to the payment of the judgment.
    Application for leave to issue execution.
    Sprague, Morey, Sprague & Brownell, for motion.
    
    E. D. Northrup, in opposition.
    
   The Surrogate.

The administratrix of Peter Boyle, deceased, commenced an action in the Supreme Court against the New York, Lake Erie & Western Railroad 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.  