In re the Accounting of Goldberg

Per Curiam. There is here an appeal by the administrator from decree of Surrogate’s Court, Bronx County, entered April 8, 1960, judicially settling his accounts with an allowance of a claim of the respondent and a direction to pay the same. The decree was rendered in a proceeding instituted on petition of the respondent for a compulsory accounting by the administrator. In her petition, the respondent merely alleged generally that she was a judgment creditor of the estate of the deceased, and, as such, interested in the estate. By supplemental petition, she alleged that she was judgment creditor by virtue of a judgment recovered in the Superior Court of New Jersey. The appellant takes the position that the New Jersey Superior Court judgment was void for lack of jurisdiction in such court, and that the respondent “ was not a proper party to compel the administrator to account, as she was neither a creditor nor a person interested within the meaning of Section 259 ” of the Surrogate’s Court Act. [296] Independent of the validity of the respondent’s judgment, it appears that she was in fact a creditor of the decedent, and, under the circumstances, the Surrogate’s Court properly assumed jurisdiction of the accounting proceeding and of the determination of the claim of the respondent. As a creditor in fact of the decedent she had a right to institute proceedings for a compulsory accounting against the administrator where the latter had not finally accounted in the Surrogate’s Court. Her failure to allege in her petitions the details of her claim is immaterial at this point. Also immaterial was her alleged failure to file a written claim with the administrator. In Carmody-Wait, New York Practice (vol. 12, p. 597) it is said that a creditor may petition for a compulsory accounting “so long as he can establish his claim, even though he did not file it.” Cited is Matter of Shafran (143 Misc. 754) where it is said (pp. 757-758): “It is, of course, well established, in spite of the provisions of section 208 of the Surrogate’s Court Act, that a creditor having an unpaid claim against a decedent’s estate is not barred by failure to present it from establishing his debt and demanding an accounting from the fiduciary at any time before the latter is fully discharged from his trust. (Matter of Mullon, 145 N. Y. 98, 104.) ” It is clear from the record that the administrator acquired knowledge of the respondent’s alleged claim almost immediately following his qualification. Therefore, he was not protected by the provisions of section 208 of the Surrogate’s Court Act. “ The protection afforded by the statute is only where the executor or administrator distributes in good faith ” without knowledge of the creditor’s claim (Matter of Gill, 199 N. Y. 155, 157), and if an executor or administrator “ has personal knowledge of the existence of a claim against the estate of his decedent, even if it be not presented to him, and proceeds to procure a decree settling his account and decreeing distribution without citing the creditor, he does so at his peril, and must account upon the petition of such creditor.” (Matter of Recknagel, 148 App. Div. 268, 272.) (See, also, Matter of Segall, 287 N. Y. 52, 59.) In any event, upon a litigation of the matter on the merits, the Surrogate determined that there were assets in the hands of the administrator subject to the payment of the respondent’s claim, and upheld her claim to the extent of $2,000. The Surrogate first took the position that he would give full faith and credit to the judgment of $2,000 obtained by the respondent in the Superior Court of New Jersey against the administrator. There was the question, however, as to whether or not such court had jurisdiction to render the judgment against the admin [297] istrator who was qualified as such solely in this State. (See Restatement, Conflict of Laws, § 512; Leighton v. Roper, 300 N. Y. 434; Helme v. Buchelew, 229 N. Y. 363.) It may be that the Surrogate was correct in his holding in the first instance that the judgment should be held here to be binding on the administrator in that he had voluntarily appeared and litigated the matter in the foreign court on the merits. (See Leighton v. Roper, supra; Peare v. Griggs, 8 N Y 2d 44; but, see, Matter of Gantt, 286 App. Div. 212, 215.) It is not necessary, however, to pass on this question, inasmuch as the Surrogate finally determined that he would hear the claim de novo on the merits. Thereupon, and on testimony of the respondent and her husband, the claim Avas fully and clearly established. The foregoing appears from the transcript and proceedings in full before the Surrogate, the same having been submitted to and received by this court, without objection, as supplemental to the abbreviated record. The determination of the learned Surrogate, as the trier of the facts, should not, on the record here, be disturbed by this court. The decree of Surrogate’s Court, entered April 8,1960, insofar as the same is appealed from, should be affirmed upon the law and the facts, without costs. The appeals from the following mentioned orders should be dismissed, without costs (see Carmody-Wait, New York Practice, vol. 8, §§ 11, 25, pp. 502-504, 513), to wit, the appeals from (1) order of September 8, 1959 for service of citation on Clerk of Surrogate’s Court; (2) citation or order to show cause of September 17, 1959; (3) order of October 19, 1959, directing administrator to account; (4) order of November 20, 1959, for issuance of supplemental citation; and (5) order or direction of March 2, 1960, restoring matter to calendar.