In re the Accounting of Lukin

John D. Bennett, S. This is a petition to compel the judicial settlement of the account of the administratrix. The petitioner alleges that he is a judgment creditor of the decedent by reason of a United States District Court judgment in the amount of $42,000 against the decedent. The answer filed by the respondent denies that the petitioner is a judgment creditor. As a first affirmative defense, the administratrix alleges that since distribution took place more than one year after letters were issued to her without the filing of a notice of claim, she cannot be compelled to account. Although section 208 of the Surrogate’s Court Act provides that if a notice of claim against a deceased person is not presented within seven months from the issuance of letters, the fiduciary is not chargeable for any assets distributed before the claim was presented, such distribution must be made in good faith. Therefore if it appears that the fiduciary had knowledge of the claim against the estate before distribution was made, the fiduciary may be held responsible (Matter of Gill, 199 N. Y. 155; Matter of Vigunas, 134 N. Y. S. 2d 216). Since the status of the petitioner as a creditor has been denied by the respondent, the petitioner must demonstrate at a hearing and upon evidence there adduced that he is a creditor prima facie of this estate (Matter of Eisenberg, 279 App. Div. 868). In the event that it is respondent’s position that distribution was made in good faith by her, her answer should be amended accordingly and this issue also resolved at the hearing. A hearing date will be fixed upon application to the court. No order need be submitted on this decision unless desired by counsel, in which event such order shall be submitted on five days ’ notice.