
    Matter of the Estate of Kalil Freije, Deceased.
    (Surrogate’s Court, New York County,
    April, 1915.)
    Executors and administrators — who cited to attend judicial settlement — presentation of claims.
    A creditor of a- decedent who not having presented his claim assigns it before the account of the administratrix is filed need not be cited to attend the judicial settlement of her account.
    Proceeding upon the settlement of the accounts of an administrator.
    Adolphus D. Pape, for petitioner.
    Strouse & Strauss, for M. & C. Mayer.
    Warren C. Fielding, special guardian.
   Fowler, S.

The question which arises upon the settlement of the decree presented by the administratrix is whether creditors who did not present their claims for admission or rejection, but who assigned them to another person before the account of the administratrix was filed, should be cited to attend the settlement of the account. Section 2730 of the Code of Civil Procedure provides that upon the judicial settlement of the account of an executor or administrator all creditors or persons claiming to be creditors of the decedent, except such as by vouchers filed with the account appear to have been paid, must be cited. Subdivision 3 of section 2768 of the Code of Civil Procedure defines creditor as including every person having a claim or demand upon which a judgment for a sum of money could be recovered in an action. A person who has assigned his claim against a decedent cannot after- such assignment recover judgment upon the claim, as an action upon such claim could only be brought in the name of the real party in interest, namely, the assignee. Code Civ. Pro., § 449. Therefore the assignor of such a claim is not a creditor of the estate and need not be cited to attend the judicial settlement of the account of the legal representative of the decedent. Costs taxed and decree signed.

Decreed accordingly.  