
    Niagara County.
    Hon. A. K. POTTER, County Judge.
    November, 1889.
    Matter of Nicholls.
    
      In the matter of the petition of Mark A. Nicholls.
    The provisions of Section 414, Ch. 4 of the Code of Civil Procedure, providing that the word “action” is to be construed when necessary so to do, as including a “ special proceeding,” limit the remedy in the Surrogate’s courts just as absolutely as the various remedies in other courts are limited, and in regard to proceedings in Surrogate’s courts the chapter must be read as if “special proceeding” were substituted whenever the word “action” occurs.
    The duty of an administrator to account is “ an obligation or liability expressed or implied” within the first subdivision of section 382, and the right to compel such an accounting is therefore barred in six years after such right has accrued.
    The duty of accounting, on the part of an administratrix exists independently of her obligation in her bond so to do, and application by her bondsmen to compel her to account is not within the provisions of section 381, Code of Civil Procedure, which provide for a limitation of twenty years in an action on a sealed instrument.
    An administrator is not a trustee in any such sense as to prevent the Statute of Limitations running in his favor.
    
      Application by Mark A. Nicholls as executor of a bondsman of Dorothy Lull, administratrix, to compel her to account as such administratrix.
    The administrators interposed an answer, setting up the Statute of Limitations as a bar to the right of petitioner to call the administratrix to account, and to this answer the petitioner demurred.
    L. F. & G. W. Bowen, for petitioner.
    
    J. E. & C. W. Pound, for administratrix.
    
   A. K. Potter, County Judge, acting as Surrogate.

This is a special proceeding instituted by the petitioner, Mark A. Nicholls, to compel the administratrix to render her final account.

Mrs. Lull was appointed administratrix of her husband’s estate, April 19, 1869.

Silas H. Marks became one of her sureties on the bond given by her as administratrix at the time. Marks has since died, and the petitioner is executor of his will, and instituted this proceeding under section 2726 of the Code.

No account has ever been rendered by the administratrix.

A petition having been filed and a citation issued February 11, 1889, the administratrix interposed an answer on the return day, setting up the statutory limitation of six years, and also the ten year statute, which she urges as a bar to the petitioner’s right to maintain this proceeding, and to this answer the petitioner demurred. This presents the question whether the Code has put a limitation upon a proceeding of this kind in Surrogates’ courts, and if so, what it is.

Chapter IV. of the Code provides in terms for the limitations of actions, but the last clause of section 414, requires the word “ action ” “ to be construed when it is necessary so to do, as including a special proceeding.” The same .section also declares that chapter to contain the only limitation existing for said proceedings.

This provision from its language and context seems intended to limit the remedy in Surrogates’ courts, just as absolutely as the various remedies in other courts are limited; and the chapter must therefore be read as if the words “special proceedings” were substituted wherever the word occurs.

The duty of an administrator to account is an “ obligation or liability, expressed or implied, “within the first subdivision of section 382.

Doubtless the word “obligation” has long been used in a restricted legal sense, being applied generally to some instance providing for the payment of' money in the nature of a bond, recognizance, etc.

But the context indicates that it is used here in a broader sense. The word contract which precedes it in the context would cover every case of “obligation” within this limited sense, and it seems plain that the words “ obligation or liability ” were intended to enlarge the scope of the provision beyond what the word “ contract ” would give to it; the definitions given by Bouvier and Webster are quite broad enough to cover the duty of an administrator to account.

In the provision relating to arrest under the old Code (§ 179) the word “ obligation” was used, and it was there held to be used in its broad sense, including legal duties. Crandall v. Bryan, 15 How. 48, 55.

The word liability does not seem to be used in quite as broad a sense as the w.ord obligation in general use, and yet the two words are used synonymously.

The following authorities tend to support the construction here given, though they did not arise under the Code as it now is. Matter of Van Epps, 64 How. 464; Cole v. Terpenning, 25 Hun 482; Leroy v. Bayard, 3 Bradf. 228; Warren v. Paff, 4 Id. 260; Loder v. Hatfield, 71 N. Y. 92.

But if this section does not cover this proceeding, certainly section 388, which provides a ten-year limitation in all cases not specially provided for, is broad enough, and for the purposes here it does not matter which section is invoked.

The petitioner urges that the twenty-year limitation (§ 381) is the one which covers this proceeding, if any one does, which he denies.

If this proceeding were based upon the bond upon which Marks was surety, assuming it to be in the usual form, this claim would be plausible, as that bond doubtless provided that the administratrix should obey the decree of the Surrogate, and he is authorized to require her to account. But this duty of accounting does not rest on that obligation. It exists independently of any such contract liability.

It is also claimed by the petitioner that the administratrix is a trustee, and so the statute does not run. But the courts have repeatedly held that administrators and executors are not in such sense trustees as to bring them within that rule. Cotter v. Quinlan, 2 Dem. 29. See also Clock v. Chadeagne, 10 Hun 97; Clark v. Ford, 1 Abb. App. Dec. 359; in which cases it was held that the six year statute protected an administrator or executor as against next of kin or legatees, which could not be if the technical rule as to trusts applied to them.

Section 1819 of the Code does not seem to interfere with this limitation of such proceeding.

Doubtless an action at law, after demand, could be maintained by a next of kin, for his distributive share of this estate. But the bond required in such case does not bind the sureties to respond to a judgment of a court of law or equity, and so the liability of the sureties is not extended in duration by that provision.

The demurrer must be overruled, and an order will be entered accordingly.

Note.—To the same effect see Matter of Dunham, 1 Connoly Surr. Rep. 323; Matter of Clayton, Id. 444; Matter of Underhill, Id. 541.  