
    Matter of the Judicial Settlement of the Accounts of James O’Brien, as Executor, etc., of Ellen O’Brien, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed November, 1900.)
    Executor and Administrator — Eight of Unpaid Judgment Creditor to Open the Settlement of the Executor’s Accounts Suspended by a Reversal of the Judgment.
    Where a judgment, under ■which an unpaid creditor of an estate procured the opening of the settlement of the accounts of the executor, is reversed and a new trial granted, the creditor becomes merely a creditor holding a disputed claim, and, where his right to compel an accounting has become barred by time, the order opening the settlement of the accounts of the executors must be vacated, without prejudice, however, to a further application by the creditor should he again recover judgment.
    Motion by an executor to vacate an order opening a decree, settling tbe accounts of tbe executor, and permitting tbe petitioner to file objections thereto.
    Abram Kling, for executor; Davies, Stone & Auerbacb, for Daniel J. Early, receiver.
   Thomas, S'.

— Tbe order of March 9, 1900, vacating tbe decree rendered in 1888 on the accounting of tbe executor, and admitting tbe petitioner to intervene and file objections to tbe account, was proper on tbe facts then existing, tbe material circumstances being that a judgment bad been obtained by tbe petitioner which was then in full force. Tbe Statute of Limitations was held not to bar tbe remedy for an accounting, because that remedy, as a means for enforcing bis judgment, did not accrue to tbe petitioner until tbe judgment was obtained, and tbe decision in Matter of Gall, 40 App. Div. 114, 42 id. 255, was referred to as tbe controlling authority. Since the granting of that order tbe judgment which was its foundation has been reversed and a new trial ordered, and the petitioner now stands as a person claiming to be a creditor, bolding a disputed claim not yet in judgment. As sucb, Ms remedy to compel an accounting was long since barred. Matter of Van Dyke, 44 Hun, 394. The motion to vacate the order heretofore made must, therefore, be granted, but without prejudice to any further application after the recovery of a judgment. The motion to compel the filing of an inventory is denied, also without prejudice.

Decreed accordingly.  