
    Mary M. Cooke Woodruff, as Administratrix, etc., of Jason G. Cooke, Deceased, Respondent, v. The H. B. Claflin Company, Appellant.
    Fourth Department,
    July 6, 1909.
    Decedent’s estate — right of surety of administratrix to open decree fixing percentages payable to creditors —when creditor previously paid is bound — money had- and received—recovery of overpayment by administratrix.
    Where the surety of an administratrix was not made party to an accounting wherein it was decreed that the estate was insolvent and the percentage payable to creditors was determined, the surety may petition to open the original decree, and this is an independent proceeding not a mere step in the accounting itself. >
    
    Where on such petition hy a surety the court has reduced the percentage pay able to creditors, a creditor who has already been paid by the administratrix and who was made a party to the proceeding, but did not appear, is bound by the decree.
    Where an administratrix who had wrongfully continued to conduct the decedent’s business, thereby causing loss, had, at a time when she believed the estate solvent, settled with a creditor to avoid threatened litigation, and it was subsequently decreed that creditors were only entitled to a certain percentage of their claims, an action lies by the administratrix (herself insolvent) to recover the excess paid to the creditor above his pro rata share.
    Although there is no special statute authorizing such suit, it may be maintained on the general principle that a trustee who had inadvertently parted with trust property can reclaim the same, or its value, by action.
    Appeal by the defendant, The H. B. Claflin Company, from a judgment of the Supreme Court in favor of the plain tiff j entered in the office of the clerk of the county of Monroe on the 18th day of September, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Percival De Witt Oviati, for the appellant.
    
      Hugh J. O'Brien, for the respondent.
   Robson, J.:

Jason G. Cooke died in Potsdam, FT. Y., on December 23, 1899, intestate. Letters of administration on his estate were issued by Surrogate’s Court of St. Lawrence county on January 2, 1900, to Mary M. Cooke, widow of intestate, who later became Mary M. Cooke Woodruff. The -United States Fidelity and Guaranty Company was the surety upon this administratrix’s bond. At the date of his death intestate was conducting two stores, one at Potsdam and one at Piercetield. His personal assets, consisting principally of merchandise in and accounts for sales from these stores, were appraised after his decease at about $32,000. The administratrix continued to run these stores for a considerable period after her husband’s death. This venture resulted in a loss. At his decease intestate was indebted to the H. B. Claflin Company on account in the sum of $725.95.. In May, 1900, the administratrix compromised and canceled this debt by a payment of $700 to that company, which payment was made by a check drawn by the administratrix to the order of the creditor on the Citizens’ National Bank of Potsdam for that amount, and was paid by said bank on June 4, 1900.

This compromise was the result of a voluntary offer of that sum, made by said administratrix to an agent of the company,' but this offer was preceded by a persistent pressure on the part of the creditor for payment, with threats of a. suit if the administratrix should not yield to the demand. " All this occurred within six months after intestate’s death, and before the condition of this somewhat complicated estate could well be known.

In 1902 the administratrix had an accounting in Surrogate’s Court, which proceeding, through the medium of a reference, reached a decree in October of the following year. By this decree it was adjudged in effect that the Cooke estate was insolvent at the outset, and was then capable of paying only about seventy-four per cent of its indebtedness. Ueithbr the surety nor the Claflin Company Was made a party to that accounting.

In July, 1904, this surety applied to said Surrogate’s Court by petition, asking to have said decree opened and amended, in pursuance of which petition a citation was issued and was served on persons shown to have been interested in said estate, including the Claflin 'Company, which citation required them to appear and show cause why said decree should not be opened and amended. Whatever the reason was, that company did not appear in this proceeding for opening the decree, but ignored the invitation altogether, and the proceeding resulted in the new decree of December, 1905, based, like the former one, mainly bn the referee’s report, and adjudging that seventy-one and eighty-four one-hundredths per cent of their respective claims was the amount which unsecured creditors of thé: estate should have received.

It was further adjudged by this amended decree that the administratrix, personally, was insolvent, and that the assets of said estate remaining in her hands were sufficient to satisfy only a trifling fraction of the unpaid debts of the intestate still outstanding.

Under the authorities it can hardly be questioned that this application by the surety to have the original decree opened was an independent proceeding, so far, and not a mere step in the accounting itself. It was the only course open to the surety; for the surety was not directly a party to the accounting and could not appeal from the decree. The surety should have been cited at the outset. This failure to make the surety a party was a sufficient cause, in the discretion of the surrogate, to entertain said application. Having entertained it, and having thereupon brought the appellant into the proceeding by citation, the Surrogate’s Court acquired jurisdiction over both the subject-matter and the appellant, •and its subsequent decree was binding upon the appellant.

A part of the relief sought by the sm-ety in its petition for opening the original decree was a reduction of the percentage which that decree had adjudged the estate could have paid. This was a subject which the appellant had opportunity to investigate and litigate when it was cited to the pi'oceeding for opening the decree. And it was a matter which bore directly upon the amount of liability which the surety had incurred through rnal-administration of the estate. The opportunity so given was disregarded by the appellant.

Much comment has been made in its behalf upon the fact that the administratrix’s account, as tiled, showed funds of her own to have been mingled, in a way, with funds of the estate in continuance of intestate’s business, in payment of his debts, etc. But the referee, to whom the account was sent for adjustment, seems to have eliminated entirely, by his report, any such mingling of funds, and to have reported only as to assets belonging strictly to the estate, and to have disallowed any distribution made therefrom to next of bin or for debts created after intestate’s death.

It is easy to surmise, from the brief outline of the accounting given, that it might have been conducted- to a different result, if the appellant had chosen to use its opportunity. Criticism of that proceeding is not now available.

The amended decree stands, and cannot be questioned collaterally, and is binding upon the appellant. It determines, in. effect, that only seventy-one and eighty-four one-hundreths per cent of the debt which intestate at his death owed the Claflin Company could properly have been paid to this creditor by the administratrix. This percentage entitled the appellant to receive $821.52 instead of the' $700 it did receive, and the action resulting in the judgment appealed from was for the excess of $178.48.

The single and serious question on this appeal then is — can an administratrix maintain such action under the circumstances stated ? That question warrants an affirmative answer. The fact that appellant’s claim was compromised upon the offer which came from the administratrix counts for little. She represented the estate. She made the payment ivitli estate funds, believing the estate was solvent. The appellant knew they were estate funds, for the check used in the payment plainly indicated that fact. ■ Its method of constraining payment was untimely and unwarranted. Whatever mistake or negligence in the transaction may be imputed to the administratrix, the estate ought not to suffer. The' transaction concerned not these two alone, but all other persons interested in the estate beneficially, and the surety also. A private compact between the two could not legally affect the rest when made to their detriment. This overpaid creditor had no equitable right, to retain the excess received above its pro rata share of assets; Ho wrong is done to the appellant by compelling a surrender of this excess.

The fact is noted that there is no special statute in this State authorizing suit for its recovery:' Other States, seem to have met such Condition by legislation. It is conceded also that no reported case in this State is available, presenting parallel facts and bearing directly on the question of the right to maintain such action. Ueither special statute nor exact precedent should be considered indispensable in determining that question. The general principle underlying the cited case of Wetmore v. Porter (92 N. Y. 76) applies in this appeal that a trustee who has inadvertently parted with property belonging to the trust can reclaim the property or the value thereof by action.

All concurred.

Jiidgment and order affirmed, with costs.  