
    Matter of the Estate of Augustus Cruikshank, Deceased.
    
      (Surrogate’s Court, Kings County,
    
      March, 1903.)
    Compulsory Accounting—Code C. P., § 2727—Statute of Limitations.
    A motion to compel the executrix of a trustee to account to a successor trustee to the end that the latter be paid a judgment, which he recovered as trustee in an action brought against the executrix for an accounting of the trust, is a proceeding to recover a demand that was due and as such is not governed by the ten years’ Statute of Limitations and is barred by the lapse of six years—in analogy to an action at law.
    Motion to compel an accounting under section 2727 of the Code of Civil Procedure.
    George Putnam Smith, for petitioner; Louis A. Noble, for respondent.
   Church, S.

This is a motion by a judgment creditor of the estate to compel an accounting under section 2727 of the Code. Decedent died October 4, 1894. Letters testamentary were issued herein on November 2, 1894.

The decedent had been trustee of the estate of Benjamin Lord, deceased. The present petitioner was appointed as such trustee January 21, 1895. In May, 1895, said trustees brought an action for an accounting against said executrix, and the executrix made an account of the acts of said deceased trustee, showing a balance of $3,921.17, which she paid over to the petitioner.

Certain assets came into the hands of the executrix, which she distributed. Thereafter, the said petitioner, as the said trustee, on June 17, 1899, obtained a judgment in said action against the executrix herein for $17,968.77, and a transcript was duly filed in this county July 15, 1902. It is contended that this motion, being made after the six years, Statute of Limitations, is barred.

Counsel for the petitioner contends that the right to such an accounting is absolute under authority of Matter of Taylor, 30 App. Div. 213, but the Appellate Division, in Matter of Longbotham, 38 id. 607, stated that they had overlooked Matter of Rogers, 153 N. Y. 316, and that, therefore, their decision in Matter of Taylor was erroneous. They also stated that such case decided “ that a proceeding to compel an administrator to account is controlled by the ten-year Statute of Limitations applicable to suits in equity.” The Statute of Limitations thus does apply to this proceeding, the only question being whether it is the six or the ten years period.

In the Longbotham case the period was considerably in excess of ten years, so it made no difference which period applied. It seems to me that the court, in the Matter of Longbotham, mistook the decision of the Court of Appeals by interpreting it to mean that all proceedings to compel an executor to account were controlled by the ten-year Statute of Limitations only.

The learned court says, in Matter of Rogers, 153 N. Y. 323: “ If Mrs. Moore had applied as next of kin, her proceedings would have been analogous to an action at law to recover a demand that was due, andj, hence, would have been governed by the shorter period named.”

Here the application is made to recover a demand that was due ” and being made after more than six years is barred by the Statute of Limitations.

Motion denied.  