
    Matter of the Estate of Horace K. Thurber, Deceased.
    (Surrogate’s Court, New York County,
    January, 1902.)
    Decedent’s estate — Order of surrogate for leave to issue execution, against, how obtained.
    The surrogate will not grant a creditor of an intestate leave to issue execution against his property, in order to create a foundation for a creditor’s suit to reach property alleged to have been fraudu-' lently transferred by the intestate, nor will the surrogate direct an intermediate accounting to determine the proper amount of the execution, where the petitioning creditor fails to allege that there are assets now in the hands of the intestate’s administrator.
    Application to issue an execution as a foundation for a creditor’s suit, to reach property alleged-to have been fraudulently transferred, and it is not alleged that there are assets now in the hands of the administrator.
    Hastings & Gleason, for petitioner.
    Mo other appearance.
   Thomas, S.

There are claims to the extent of upwards of $1,000,000 of the same class as that of the petitioner. The petitioner is only entitled to an execution for the collection of hiS' just proportion of the assets of the estate. Code Oiv. Pro.,. § 1826. An intermediate accounting might be ordered for the-purpose of ascertaining the amount for which the petitioner is entitled to have execution. Code Civ. Pro., § 2725. The avowed purpose of the application is to issue an execution as a foundation for a creditor’s suit, to reach property alleged to have been fraudulently transferred, and it is not alleged that there are assets now in the hands of the administrator. The remedy of the petitioner in the Supreme Court may exist without the issuance of any execution (Harvey v. McDonnell, 113 N. Y. 526), but this I do not determine. I will not direct an intermediate accounting on the papers before me, for the reason that sufficient facts do not appear to require the exercise of my discretionary power to do so. Application denied, without prejudice to another application on papers showing that assets are in the hands of the-administrator.

Application denied, without prejudice to another application.  