Majority
p. 555In the Matter of the Application of The Fidelity and Deposit Company of Maryland, Appellant, for Leave to Commence an Action against George H. Stevens, as Committee of the Person and Estate of Nancy C. Warner, an Incompetent, Respondent. (Argued January 4, 1904; decided January 19, 1904.)
Headnote
Matter of Fidelity & Deposit Oo. v. Stevens, 87 App. Div. 609 , affirmed.Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 15, 1903, which affirmed an order of Special Term denying the application of petitioner for leave to commence an action against the respondent herein. The following questions were certified:
“ I. As between the sureties on all the bonds mentioned in the record, was the appellant first and primarily liable on the last appeal bond ? .
“ II. The appellant being surety on the appeal bonds, can it require contribution from sureties on the original bond of the committee or from the estates of such persons, even if the amount paid by the appellant was in form paid on the bond
p. 556
given by the committee, as such, and not on the appeal bonds ?”
J. Murray Downs for appellant.
Peter A. Delcmey for respondent.
Order affirmed, with costs. First question certified answered in the affirmative and second question in the negative; no opinion.
Concur: Parker, Ch. J., Bartlett, Martin, Vann and Cullen, JJ. Absent: O’Brien and Werner, JJ.