
    
      In re Ockershausen.
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1891.)
    1. Executors and Administrators—Payment of Claims—Contempt.
    An executor will not be adjudged guilty of contempt in failing to pay over money as required-by an order of the surrogate’s court, unless it appears that demand for payment has been made, or that such demand was impossible or difficult.
    3. Same.
    On a motion to punish an executor for contempt it appeared that he had incurred a loss on the sale of property owned by a firm of which testator and the executor were members; that petitioner was entitled to a portion of the money so lost; and • that the executor by an order of the surrogate’s court had been directed to pay the same. Held that, the indebtedness not being for money which the executor had received and for which he had failed to account, the executor is not liable to be punished for contempt, where he is unable to make the payment ordered.
    Appeal from surrogate’s court, Richmond county.
    Application by Henry Q. Ockershausen to punish George P. Ockershausen for contempt in-failing to pay to petitioner a sum of money as directed by the surrogate. It appeared that the executor, as surviving member of a firm of which testator was also a member, had incurred a 'loss on the sale of firm property; that of the loss so incurred petitioner was entitled to a certain portion;' and that an order had been made by the surrogate directing the executor to pay petitioner such sum. The surrogate adjudged the executor in contempt, and he appeals.
    Argued before Barnard, P. J., and Dykhan and Pratt, JJ.
    
      Charles P. Buckley, for appellant. Wm. M. Mullen, for respondent.
   Pratt, J.

The moving papers do not show a demand upon the executor for payment, which has been held to be necessary before a proceeding in contempt can be maintained. McComb v. Weaver, 11 Hun, 271. There is no allegation showing absence or concealment of the debtor, or any other reason why a demand would be impossible or difficult. We see no reason why the general rule requiring a demand should be departed from in this case. The indebtedness in the present case has none of the features of a tort. It is not for money which the executor has received, and for which he fails to account. It is for a debt allowed to be owing from him to the estate. If the debt is due, and the set-off claimed does not exist, it might support a decree against him upon which an execution could issue. After the return of the execution, if defendant had money in his hands which, after an order duly made, he unjustly refused to apply upon the debt, an order punishing him for contempt may be made. That is not in this proceeding. The papers show that appellant is insolvent, and unable to pay the amount decreed. Where the debt is not fiduciary in its origin, does not rest in tort, inability to pay the sum demanded is an answer to the motion to punish for contempt in not paying.

Order reversed, with costs of both courts to appellant.  