
    Matter of the Application of The Lawyers’ Surety Co., of New York, to be Relieved from Further Liability on the Bond of Mary F. Hanifin, Administratrix, Etc., of Margaret McCormick, Deceased.
    (Surrogate’s Court, New York County,
    November, 1898.)
    Surrogate’s Court — Bolease of a surety, on a bond given .by an administratrix in order to sell real estate, refused.
    
      Semble, that the provisions of section 2600 of the Code of Oivil Procedure do not authorize a Surrogate’s Oourt to release a surety from the obligation of a bond given, under section 2766 of said Code, by an administratrix upon a decree directing her to sell the real estate of her intestate for a payment of his debts.
    Where it is conceded that no breach of such a bond has occurred or can hereafter occur and it appears that the duties of the obligor have become impossible of performance, a direction for the filing of a new bond would be improper.
    Application by The Lawyers’ Surety Company, of New York, to be relieved from further liability on the bond of an administratrix, given under an order entered December 15, 1897, directing the real estate of decedent to be sold for the payment of debts.
    Norwood & Dilley, for petitioner.
    Ronald K. Brown, for administratrix.
   Arnold, S.

The application of the petitioner to be released as surety upon the respondent’s "official bond as administratrix is granted, conditioned upon the filing of a bond with new sureties, within five days from the service of the order herein upon her or her attorney, in default of which letters will be revoked. As to the application made for the release of the surety from the obligation of the bond given by the respondent under section 2766 of the Code of Civil Procedure, I doubt whether, notwithstanding the general language used in section 2600, its provisions apply to such a bond. The penalty prescribed by section 2601, in the event that new sureties are not furnished, is the revocation of the respondent’s letters. This would be appropriate where the sureties are on a bond required in order to obtain or retain letters and to continue the management and custody of the estate, but not in a case like the present one. The proposed order does not contain any provision for such revocation, but one for vacating the decree for the sale of the decedent’s real estate in case new sureties are not furnished. I know of no authority for such a direction here. As the ultimate object of proceedings under section 2600 is to procure the release of the surety from responsibility on account of any future breach of the conditions of the bond, and in this case it is shown by the answering affidavit, and not denied by the petitioner, that no breach of the condition of this bond has occurred or can possibly occur in the future, and as the duties, to secure the faithful performance whereof by the principal the bond was given, are now impossible of performance, no direction for the filing of a new bond would be proper.

Application denied.  