
    In the Matter of the Application for the Compulsory Accounting of the Executors of Lewis May, Deceased, as Executor of Herman Schlesinger, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      Filed August, 1898.)
    Exectjtoks — Limitation.
    Where a decree settling the accounts of executors is opened for the purpose of determining the liability of one of the executors for a loss, claimed to have resulted from his misconduct, and such executor dies; during the pendency of such inquiry, the parties aggrieved have, under’ section 405 of the Code, one year within which to bring a proceeding;, pursuant to section 2606, against the legal representatives of suchi executor to determine the liability of his estate.
    Proceedings under Code Civ. Pro., section 2606, to determine the liability of the estate of an executor for misconduct-in his trust.
    Gruber & Bonynge, for petitioner; M. S. & I. S. Isaacs, for respondents.
   Fitzgerald, S.

The petitioners were parties to a proceeding brought by the executors of Herman Schlesinger, deceased, for the judicial settlement of their accounts. A decree was •entered in such proceeding, which was subsequently, pursuant •to the decision of the General Term of the Supreme Court, •opened, as between the petitioners and one of the executors, for the purpose of enabling the former to> procure a determination as to the liability of the latter for the loss which it was claimed the estate he represented had sustained' by reason of his misconduct. He died pending the inquiry required by the decision mentioned and this proceeding was thereafter commenced against the representatives of the déceased executor, under section 2606 of the Code of Civil Procedure, for the purpose of fixing and determining the liability of the estate of the latter for such loss. The respondents have attempted to .avail themselves of the Statute of Limitations as a bar to the proceeding by orally interposing the same upon the hearing, .and in their brief, but without filing any written answer in respect to the same. Assuming that he can thus avail himself ■of the statute, there are, nevertheless, no facts before the court from which it can say that the plea thereof is effective: as a bar, ■even if the limit of the time prescribed by the statute had fully,, run. But. it seems to me that such time has not fully run. Section 414, subdivision 4, makes applicable to this court, in appropriate cases, the provisions in respect to the limitations of the time of commencing actions, contained in chapter 4 of the Code of Civil- Procedure. Sections 405 and 412, which form part of this chapter, provide for the extension of the time •of the running of the statute for the periods and in the cases therein prescribed. Section 405 declares: “ If an action is •commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute tbe action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative, may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.” Subdivision 4' of section 414 says that the word “ action ” contained in this chapter is to be construed, when it is necessary so to do, as including a special proceeding, or any proceeding therein. In those two sections will be found, I think, sufficient warrant for holding that the present proceeding, which is a special proceeding and has been begun within a year after the death of the executor, has not been barred by the Statute of Limitations. Owing to the nature of its provisions and the difficulty of detecting an analogy or similarity between the situations therein provided for and those existing in the present case, section 412 does not seem to me to be here applicable. Section 405 presents, I think, no such embarrassment. Although the present applicants were not the petitioners in the proceeding to which the- deceased executor was a party, by their contention therein of the liability of such executor for the loss which it is claimed he had occasioned, their attitude in that proceeding was substantially, if not exactly, the same as that of a plaintiff in an action seeking the same relief. The deceased executor was, at the time of his death, in fact and effect, the only party respondent to the proceedings which the General Term authorized against him, and I am satisfied that his death terminated and abated these proceedings. Herbert v. Stevenson, 3 Dem. 236; Estate of Jean Francois Charriere, Surr. Dec., 1897, p. 551. While they were pending, no other proceeding could have been commenced by the present petitioners for the relief obtainable in such proceedings. -Within-six months after the'death of the executor, whose representatives are the respondents herein, this proceeding was begun; and I think that section 405, which permits the bringing of an action in certain cases within one .year after it has terminated, has enabled the petitioners to maintain this proceeding.

Application granted.

Note. — This decision was reversed in the Appellate Division in Matter of Schlesinger, 36 App. Div. 77.  