Browning v. Vanderhoven

Barrett, J. It was the creditor’s demand, and not the estate itself, which was the subject-matter involved in the proceeding before the surrogate. The accounting was but an incident. It is not analogous to a partition suit, as claimed by the plaintiff, nor to an action to restrain the erection of a structure (68 N. Y., 71), as the defendants insist, but rather to a creditor’s bill. In such a case the creditor would only be entitled to an allowance upon his judgment, not upon the value of the property sought to be reached. This is well settled in Struthers agt. Pearce (51 N. Y., 365). The plaintiff claimed as a copartner and recovered one-fourth interest in a lease taken by the defendants in their'own name. It was held that he was entitled to an extra allowance only upon the one-fourth. The claim of an allowance upon the value of the lease was repudiated, Lott, Ch. J., remarking: “It might, as it seems to me,‘be claimed with equal propriety that a plaintiff who commenced an action for the settlement of, partnership matters and accounts, and the payment of his share as a partner, could have an allowance made to him based on the entire amount of assets involved in the settlement.” Further, this construction is the only reasonable one; otherwise a number of small creditors applying for payment at the same time might consume the estate in allowances. [103] Then look at the converse. Will it be contended that, if the surrogate had dismissed the creditor’s proceeding, she could have been mulcted in five per cent upon the entire estate ? Both on principle and authority it seems clear that the allowance in question was without jurisdiction. The question remains as to whether these sureties can take the objection. The object of the statute (Laws of 1870, chap. 359, sec. 1) appears to be to place the surrogate’s court, in this matter of jurisdiction, upon the same plane as courts of general jurisdiction. Under this section, the remedy of the administrator was probably limited to an appeal. The sureties, however, were not parties to the record, and -could take no appeal. It is doubtful whether they could move the surrogate and, in case of his adherence to the original judgment, obtain a review by appeal from the denial of their motion. Be that as it may, the legislature never intended, as to the parties dehors the record, to overturn the general policy of the law, which allows the fullest inquiry into jurisdiction. Schofield agt. C hurchill (reported in, the N. Y. Weekly Digest of April 29, 1878, vol. 6, No. 9) is not in point. In that case there was no question of jurisdiction. The bond was executed to save the executor from removal on a charge, substantially, of misappropriation; and the defense of this very misappropriation was, therefore, clearly frivolous. The decree in that case was, of course, conclusive upon the sureties. The court said it was conclusive in the absence of fraud and collusion; we may add, in the absence of an excess of jurisdiction. There must be judgment for the defendants, with costs.