
    McCoun v. Sperb et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    Executors and Administrators—Bonds—Liability to Surety.
    A surety on an administration bond may sue an administrator for payments made by the surety on account of the defalcation of a co-administrator.
    Appeal from circuit court, Orange county.
    Henry T. McCoun, Jr., sued William Sperb, Jr., and Burton T. Beach, alleging that, as surety on the bond of said defendants, as administrators of Gilbert Dunspaugh, he was compelled to pay $2,056.23 on the defalcation of said Beach, and asking reimbursement. Beach had absconded, and Sperb was in
    
      no way responsible for the defalcation. Judgment was rendered for defendant Sperb, and plaintiff appeals.
    Argued before Barnard, P. J., and Pratt and Dykman, JJ.
    
      Arnold <& Greene, for appellant. Arnoux, Ritch & Woodford, for respondent.
   Pratt, J.

The case of Nanz v. Oakley, 37 Hun, 495, is a distinct authority for the'plaintiff in this action. The court of appeals in Sperb v. McCoun, 110 N. Y. 605, 18 N. E. Rep. 441, call attention to the fact that Nam v. Oakley was, in effect, prosecuted for the individual benefit of the administrator, who was the only heir at law and next of kin, and appear to approve the decision upon that ground. They certainly express no disapproval of the result arrived at by the supreme court, and we can well believe, as is stated in respondent’s points, that, on the publication of the decision of the court of appeals in Sperb v. McCoun, Hans abandoned his appeal. The authorities ci,ted from other states seem to concur to the effect that the surety in an administration bond ca,n call upon either principal for indemnity, and in view of the implied approval by the court of appeals of Nanz v. Oakley, as distinguished and limited by them, we are of opinion that we must be bound by its authority. This leads to a reversal of the judgment appealed from. We clearly see that, in effect, this renders an administrator liable for the torts of his co-administrator. But we do not see how this result can be avoided, unless the legislature intervenes, as has been done in Massachusetts, and permits separate bonds to be filed by the administrators. Judgment reversed, new trial ordered; costs to abide event.  