
    Thompson et al. v. Hawke et al.
    
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    Action—When Maintainable.
    Plaintiff's testator, as a condition for substituting an attorney in a nending suit, was required to enter into a bond to pay the former attorney any sum'he might recover in a suit for fees. He obtained one D. to furnish the bond, giving him certain railroad bonds as security. Two years and a half after testator’s death,the attorney, not having filed his claim against testator’s estate, his executors sued him and the surety, seeking to compel the attorney to file his claim within three months or be debarred from a suit on the bond, in order that the estate might be settled. Held, that the action would not lie.
    Appeal from special term.
    Jennie M. Thompson and another, as executors of the will of John B. Thompson, deceased, sued Edward H. Hawke and one Danziger. From a judgment sustaining a demurrer to the complaint plaintiff appeals.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Lewis Banders, for appellants. Lawton & New, for respondent Hawke.
   Van Brunt, P. J.

In April, 1886, John B. Thompson, plaintiffs’ testator," as a condition for substituting another attorney in place of his attorney, the defendant Edward H. Hawke, in a suit then pending in the court of common pleas brought by Richard J. Capron and another, was required to give a bond, with a real-estate surety, in the penal sum of $10,000, to well and truly pay said Hawke, his heirs or assigns, such sum of money as said Hawke may recover in any action which may be brought by him against the said Thompson, for professional services and disbursements in the suit of Capron and Merriam against Thompson. Thompson gave the bond, with the defendant Danziger as his surety, on the 21st of May, 1886. To secure Danziger, Thompson pledged with him $10,000 in the bonds of the Columbus & Indianapolis Central Railroad Company. Thompson died on the 12th of November, 1.886, and plaintiffs were appointed his executors. In March, 1889, two years and a half after Thompson’s death, and nearly three after giving the bond, plaintiffs requested the defendant Hawke to present his claim against their testator’s estate; and on the 26th of March, 1889, plaintiffs commenced advertising the usual executor’s notice for the presentation of claims; and on the 11th of April they commenced this action to require the defendant Hawke, within three months from the entry of the decree herein, to present his claim for services in the Capron and Merriam case, or to be debarred from bringing suit on the bond; because, as plaintiffs allege, unless Hawke should present his claim or bring an action to recover the amount thereof they will be unable to distribute the assets of the estate in accordance with the will, or to obtain from said Danziger the railway bonds pledged to him as security. It seems to be conceded by the learned counsel for the appellant that, Thompson living, this action could not be maintained; but, Thompson dead, that equities arise in the plaintiffs’ favor out of their trust relation to the property of the deceased and the statutes governing claims against executors. But it is difficult to see how the court can step in and add additional or other provisions to the contract between Thompson and Hawke simply because Thompson has died. Simply because Thompson indemnified his surety upon the bond in no way affected the right of Hawke under his contract. He was not a party to such indemnification, and had nothing to do With it. That was a private arrangement between Thompson and his surety. The statutes have fixed Hawke’s right under his contract, and certainly this court cannot intervene and impose new conditions, which the court under whose ruling the contract was given has not imposed. Thompson having accepted a favor upon the condition of making this contract, simply because he has died his estate cannot claim exemption from the full liability assumed by him. The judgment appealed from should be affirmed, with costs. All concur.  