In re McCullough — 2 Gibb. Surr. 175

Majority

p. 175

In the Matter of the Application of John G. McCullough et al., as Executors, etc., for leave to issue execution against Susan Dorr, as Administratrix.

(Surrogate’s Court, Erie County,

Filed December, 1896.)

Headnote

Executors — Execution.

Leave to issue an execution -against an administrator or his representative on a judgment for costs rendered against him in an action to recover for the negligent killing of his intestate will not be granted, as the judgment was not recovered in an action relating to the decedent’s estate.

Application for leave to issue execution against an adminis-tratrix.

Sprague, Moot, Sprague & Brownell, for petitioner; Leroy Parker, for administratrix.

Susan Dorr brought an action against the receivers of the Erie Railway Company for the negligent killing of her husband, the result of which was favorable, to the railway company, the plaintiff having failed to sustain her action.-

A judgment for costs was obtained against her and.an.application is now made for leave to issue execution.

The judgment obtained and upon which leave to issue execu

p. 176

tion is asked for is in favor of the petitioners against Susan Dorr, as administratrix of the goods' and chattels of Peter Dorr, deceased.

It is clear that this judgment was not obtained in an action relating to the estate of decedent within the authority of Matter of Jansen, 1 Connolly, 362, and, therefore, this court cannot allow an execution to issue for the costs of the action against the administratrix in her representative capacity.

Application for leave to issue execution denied; with costs to ■contestants.

Application denied, with costs.