
    Helen R. Cookman, Appellant, v. Morgan A. Stoddard and Jacob Ashbach, Respondents.
    Fourth Department,
    May 5, 1909.
    Executors and administrators — voluntary accounting — sureties must be cited — constitutional law — amendment to section 2738 of tbe Code of Civil Procedure retroactive.
    Since the amendment to section 3728 of the Code of Civil Procedure the sureties of an administrator are necessary parties to a voluntary accounting.
    Hence, if such sureties were not cited on an accounting and did not appear, they are not liable in an action to recover a legacy directed to he paid by the administrator on the accounting.
    The amendment to section 2728 of the Code of Civil Procedure requiring the surety of an administrator to he cited on a voluntary accounting applies to a surety whose bond was executed before the amendment. There is no impairment of the obligations of the contract expressed in the bond, as the amendment affects procedure only.
    Kruse, J., dissented, with memorandum.
    
      Appeal by the plaintiff, Helen E. Cookman, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Lewis on the 16th day of December, 1908, upon a nonsuit granted by the court at the close of plaintiff’s case on a trial at the Lewis Trial Term, and also from an order entered in said clerk’s office on the 8th day of December, 1908, denying the plaintiff’s motion for a new trial.
    
      C. S. Mereness, Jr., for the appellant.
    .B. M.'Boueks and Frank Bowman, for the respondents.
   Robson, J.:

This is an action against the surviving sureties upon the bond of one George Wider, ás administrator with the. will annexed of Charles A. Wider, deceased, in which plaintiff seeks to recover the amount directed to be paid by said administrator to her as a legatee of said testator by decree of the Surrogate’s Court of Lewis county made in proceedings instituted in that court by him for a voluntary accounting as such administrator. It is conceded that the sureties— defendants above named—■ were hot cited in said proceedings, and did not appear in any manner therein. The court granted the nonsuit arid directed the judgment entered thereon solely because of such failure to cite the sureties and their non-appearance on- said accounting. The administrator’s bond was in the usual form, except that it does riot appear to have been executed by the obligor named therein. Plaintiff relies upon the provisions of the decree of judicial settlement of the administrator’s account, by which he is directed to pay to her the sum of $144.57, as fixing the amount for the payment of which, in default of payment by the administrator^ defendants are liable to her. If the law stood as it was prior 'to the amendment to section 2728 of the Code of Civil Procedure, which became operative after the bond was given, and before the proceedings for the administrator’s accounting were begun by him, there could be no question of the absolute correctness of her. position. The effect of this amendment was to make the sureties upon the bond of the petitioning administrator in proceedings for voluntary-accounting parties, whose presence in fact, or by operation of law, either by service of citation on them, or by voluntary appearance, was as necessary as that of any other one of the classes of persons designated in tjie section.' If the sureties were not in fact cited or .did not appear, then before decree of distribution could properly be made they must be brought in by supplemental citation as required by section 2743 of the Code. A case apparently decisive in support of this judgment is McMahon v. Smith (24 App. Div. 25). It is true that the decision in that case held the sureties on the bond bound by the decree of the Surrogate’s Court, although they were not parties to the proceeding. But the proceedings under review in that case were in a compulsory, not a voluntary, proceeding for accounting. Both the prevailing and dissenting opinions delivered in that case clearly show that had the proceeding in which the decree then in question was made been for a voluntary accounting the sureties would not have been bound thereby. (P. 28 of prevailing opinion and p. 32 et seq. of dissenting opinion by O’Brien, J.) Appellant’s counsel does not seem to question seriously the propositions, inferentially, least, established by that decision. He does, however, insist that, if this amendment is to be given effect as applied to the present case, it would necessarily result in impairing the obligation of the contract expressed in the bond, which was made before this law was passed. His position is that because the statute, as amended, requires that a surety must be made a party to proceedings for voluntary accounting of his principal before he will be bound by the provisions of the decree made in those proceedings, therefore the obligation of the contract expressed in the bond is in some way impaired. But, it would seem, the amendment affects only the procedure to be adopted in enforcing a remedy on the bond. The obligation of the bond is not thereby impaired in the slightest, nor is the remedy denied or made less effectual than that which existed when the bond was filed. There is added a single necessary step in the formal procedure, viz., making the surety a party to the proceeding, and this being done the decree made therein is just as effectual in fixing the sureties’ obligation to respond in damages for a breach of the condition of the bond as it ever was. It has always been held that procedure in enforcing a given remedy, even the remedy itself, or the rules of evidence, may be changed, or modified, and the changed condition thereof made applicable to existing contracts, provided only a remedy be not denied, or so embarrassed with conditions and restrictions as seriously to impair the value of the rights (Tennessee v. Sneed, 96 U. S. 69 ; Black Const. Prohib. § 192; Marx v. Hanthorn, 148 U. S. 172; Cooley Const. Lim. [7th ed.] 524.)

The judgment and order should be affirmed, with costs.

All concurred, except Kbuse, J., who dissented in a memorandum.

Kruse, J. (dissenting):

I think the judgment ought to be reversed. The condition of the bond is that the administrator will faithfully discharge the trust reposed in him as such, and obey the lawful decrees and orders of the Surrogate’s Court of the county of Lewis, touching the estate committed to him. The administrator made his petition for a final judicial settlement to the Surrogate’s Court, and a decree was made settling his accounts and directing distribution, but the citation was not served upon the sureties. Section 2728 of the Code of Civil Procedure provides that an executor or administrator may present his account and written petition praying that his account may be judicially settled, and that the sureties in bis official bond and other persons interested and named in said section may be cited to attend the settlement.

There was no provision for citing the sureties at tlm time the bond was executed. It does not seem to me that the failure of the administrator to serve the Citation upon the sureties prevents the plaintiff from recovering upon the bond. I think the decree was a lawful decree against the administrator, and that the proceeding in the Surrogate’s Court is in no proper sense a remedy upon the bond.

Judgment and order affirmed, with costs. 
      
      See Laws of 1880, chap. 178, § 2729; Id, as amd. by Laws of 1893, chap. 252; Id. § 2728, as revised and amd. by Laws of 1893, chap. 686, and amd. by Laws of 1894, chap. 421, and Laws of 1895. chap. 426.— [Rep.
     