
    John S. Allen, by Rudolph Nay, His General Guardian, Plaintiff, v. John Fahy and Frank X. Kelly, as Administrator, Etc., of John Kelly, Deceased, Defendants.
    (Supreme Court, Monroe Trial Term,
    January, 1900.)
    1. Guardian, and ward — Sureties of general guardian not liable for proceeds of ward’s realty declared, by a decree, to have been received by the guardian.
    The sureties upon the bond of a general guardian are not responsible for moneys which a surrogate’s decree declares have come into the hands of the guardian from the sale of the ward’s realty.
    3. Same — The complaint must allege that execution has been issued on the decree.
    Where action is brought, by one who has attained majority, to recover such moneys of such sureties, the provisions of section 2607 of the Code of Civil Procedure apply, and the complaint must be dismissed on the merits where it fails to allege that execution was issued on the decree before the action was brought.
    Action against sureties upon the bond of a general guardian after an accounting by the guardian in Surrogate’s Court.
    John B. Kiley, for plaintiff.
    Charles M. Williams, for defendants.
   Nash, J.

The sureties upon the bond of a general guardian are 'not responsible for money which may come to the hands of the guardian from the sale of the real estate of his ward. Muir y. Wilson, Hopkins Oh. 512; cited and approved, Cook v. Lee, 6 Paige, 158. Therefore as to the sum of $970.32 stated in the decree of the Surrogate’s Court to have been received by the guardian in proceedings in Monroe County Court for the sale of the interest of the infant in real estate, and as to which it is stated in the decree that it is without prejudice to any defense the sureties of the guardian may have, the plaintiff is without remedy as against the defendants.

The complaint must he wholly dismissed for the reason that it does not allege that an execution was issued upon the surrogate’s decree before the commencement of the action. Code Civil Procedure, § 2607. A demand only is alleged. The plaintiff having arrived at full age the action is in effect brought by him in his own behalf to recover against the sureties of the guardian upon his official bond, and clearly within the provisions of that section of the Code. Findings may be submitted.

Ordered accordingly.  