In re Campbell — 66 A.D. 478

Majority

p. 478

In the Matter of the Disposition of the Real Property of William Campbell, Deceased, for the Payment of His Debts. William W. Heroy, as Sole Surviving Partner of the Firm of Heroy & Marrenner, Appellant; William H. Arnoux, Respondent.

Headnote

Sale of decedent’s real property — creditors’ rights are limited to proving and contest. ing claims.

Creditors.-of a decedent may be,made, parties to a proceeding for the sale of the ■ decedpnt’s real estate for the sole purpose of presenting and proving then-debts and of contesting other claims, and cannot be allowed" to interpose an answer and file objections for the purpose of contesting the necessity of the > proceedings or of malting a defense to them.

p. 479

Appeal by William W. Heroy, as sole surviving partner of the firm of Heroy & Marrenner, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 31st day of July, 1901, granting leave to William IL Arnoux to intervene in the proceeding and to file his answer or objections.

Henry B. Johnson, for the appellant.

John McG. Goodale, for the respondent.

This proceeding was brought by a creditor to procure the sale of decedent’s property to pay debts. It was initiated some years ago ; is still pending and undetermined, and another creditor has made an application to be allowed to intervene and to file an answer and objections. The surrogate granted the application, and from that part of the order which permits the creditor to file answer, and objections, this appeal is taken.'

With respect to the relief that could be accorded, we find no warrant for allowing any other or greater relief than to permit the new creditor to intervene, the surrogate having no authority to grant leave in addition to file answer and objections. The only purpose that could be accomplished by such permission would be to enable this creditor to contest the necessity of the proceeding or defend against it, but such right under the Code is given only to the heirs, devisees and persons claiming under them. (Code Civ. Proc. §§ 2749-2801.) Although creditors may also be parties, it is only for the purpose of presenting and proving their debts and contesting other claims.

Without referring in detail to all the provisions of the Code of Civil Procedure which sustain these conclusions, it is necessary only to mention specifically section 2755, which relates to the hearing, and shows that while a creditor “ may present and prove his debt or lien, and thus make himself a party to the special proceeding,” this is the extent of his rights, and from what follows in the same section it will be seen that it is only the persons named, other than creditors, who can interpose an answer and file objections for the

p. 480

purpose of contesting the necessity of the proceedings or of making a defense to them.

An examination of the cases relied upon by the respondent are not authority for the contrary view, and the surrogate having, therefore, been without power to grant the leave to filé answer and objections, so much of the order as attempts to confer such right cannot stand.

The order, therefore, must, in the respects mentioned, be reversed, with ten dollars costs and disbursements, and to the extent that the creditor asks leave to file answer or objections, his application should be denied.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ.., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied to the extent stated in opinion.