In re Sargent

Herrick, J.: It appears from the petition of the administrator and administratrix that, some time on or prior.to November 1, 1890, they had allowed and adjusted the claim of the petitioner upon the note. . That adjustment and allowance of the claim fixed a new period from which the statute would commence to run as against such demand, and in the absence of any evidence as to when, the claim was in fact allowed, I think we must fix the date of such allowance as of the time when the petition was presented to the Surrogate’s [304] Court; if it was allowed at' an earlier period the person seeking to set up the bar of the statute should have proved it. The presenting of that petition was the commencement' of legal proceedings for the payment of such claim, and the statute will not run against it pending proceedings to procure money for its payment. It is familiar law that when legal proceedings are commenced to enforce a right, before the statute has run against it, that no lapse of time after the commencement of such proceedings will operate as a bar to the enforcement of that right. (Evans v. Cleveland, 72 N. Y. 486, 488.) And while that principle is ordinarily applicable to proceedings commenced in person by the party claiming the right, yet I do not see why the same principle does not apply when such proceedings are instituted in his behalf and for his benefit, particularly when in a case like that of a claim presented to and admitted by an administrator, which renders an action to obtain a judgment for it unnecessary. It seems to me, therefore, that the claim itself is not barred. The next inquiry is whether the right to call the administrator and and; administratrix to account is bárred. The general rule is that the six years’ Statutej of Limitations applies to proceedings against executors and administrators. (Roup v. Bradner, 19 Hun, 513; Matter of Rogers, 153 N. Y. 316.) While such rule and the authorities cited uphold the decision of the surrogate in not compelling the defendant to account for the personalty, I do not think such rule or the cases, bar an accounting as to the proceeds of the real estate. As administrator and administratrix, primarily, they have nothing to do with the decedent’s real estate;. they have no control over it as such ; they can only sell it by virtue of the special proceedings authorized by title 5 of chapter 18 of the Code of Civil Procedure (§§ 2749-2801), under which, if they refuse to act, a freeholder can be designated by the surrogate to sell the same for the purpose of procuring money to pay debts. (§ 2767.) : They are proceedings which may be instituted by an executor or .administrator, or by a creditor of the estate. When, pursuant to such proceedings, the executor of administrator sells, he is, before selling, required to give a bond to account for all money received by [305] him whenever he is required to do so by a court of competent jurisdiction. (§ 2766.) Under section 2726 of the Code of Civil Procedure, the Surrogate’s Court “ may, from time to time, compel a judicial settlement of the account of an executor or administrator. * * * 3. Where a decree for the disposition of real property, or of an interest in real property, has been made, as prescribed in title fifth of this chapter, and the property, .or a part thereof, has been disposed of by him pursuant to the decree.” It will be observed that the accounting provided for by the last section cited is a special accounting for their proceedings in a special proceeding, not an accounting for their proceedings generally as executors or administrators. If we assume that the statute does run in such a case, it cannot commence running until the creditor’s right to call them to an account has accrued; The right to call them to an account for the moneys received from the real estate could not accrue until they had received such money. There is no evidence as to when this money was received by them, except their report filed March 3, 1893. If they received it at an earlier time, it was incumbent upon them to prove the time of such receipt, in order to fix the time from which the statute commenced running; in default of such proof, I think we ,must take the date of their report to the surrogate as the time, when the right to call them to an account for the receipt of such money accrued. These proceedings to call them to an account were commenced less than six years thereafter. The proceedings here for the sale of the real estate were instituted under the title and chapter of the Code of Civil Procedure men-' tioned in section 2726. The record discloses that the real estate has been disposed of by the administrator and administratrix pursuant to the decree; it shows that they sold such real estate for more than $19,000, and it is to be inferred from their report that they received that amount of money therefor; they did not account for it, and it must be assumed that they still have it, and such assumption must continue until they do account for it. The petitioner in his petition, after alleging the obtaining of a [306] decree for the sale of real estate for the payment of debts, and the sale of such real estate under such decree, further alleged that “ The said administrator and administratrix have not accounted for the proceeds thereof, or paid any part thereof to your petitioner.” The administratrix filed a written answer, in which she denied various allegations of the petition, but did not deny that portion of it referring to the real estate in question, or that portion which charged that the administrator and administratrix had not accounted for the proceeds of the sale thereof, and it must, therefore, be taken as admitted that the proceeds of the real estate have never been accounted for. So far as. the record before us discloses, the proceedings authorized by the Surrogate’s Court for the sale of real estate to procure money with which to pay this and other claims against the decedent’s estate have never been concluded. The case before us, therefore, comes within section 2726,: of the Code of Civil Procedure, above cited. x The decree of the surrogate should, therefore, be in all things affirmed, without costs of this appeal to either party. All concurred, Parker, P. J., in result. Decree of the surrogate affirmed, without costs to either party#