In re Belden's Estate — 152 N.Y.S. 723

Majority

p. 723

In re BELDEN’S ESTATE.

(Surrogates’ Court, New York County.

April 9, 1915.)

Headnote

JSXECUTOBS AND ADMINISTRATORS <@=>283—CLAIMS AGAINST ESTATE—PROCEEDINGS and Determination.

A proceeding under Code Civ. Proe. § 2687, to compel payment of a claim derived from a judgment creditor of deceased insolvent, in which numerous creditors appeared and there was a contest as to priorities, will be dismissed without prejudice, where an accounting of the estate was pending, in which all the interested parties were before the court, and in which, under section 2728, a supplemental citation might issue, to all parties interested, and in which if it appeared that there was a surplus for distribution, their rights might be finally and conclusively adjudicated.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 1120-1131; Dec. Dig. <@=>283.]

In the matter of the estate of Henry Belden. Proceeding to compel payment of a claim derived through a judgment creditor of deceased. Dismissed.

Brush & Crawford, of New York City (John J. Crawford, of New York City, of counsel), for petitioner.

Charles L. Craig, of New York City, for administrator.

Henry W. Eaton, of New York City (Earl A. Darr, of New York City, of counsel), for claimants Phillips & Avery.

Murtha & Hanson, of New York City, for Marion Hansen.

Charles W. Leeman, of Brooklyn, for Florian Groshean’s executors.

This proceeding to compel payment of a claim was instituted on the petition of a person who claims an interest through a judgment creditor of the decedent, and is governed by section 2687, C. C. P.

It is conceded that there are not sufficient funds in the estate to pay all the debts. Many creditors have appeared in this proceeding, and there is a contest as to priority between some of the judgment creditors. I am of opinion that these questions can only be properly decided in an accounting proceeding, in which all parties interested are before the court, rather than in a proceeding where only some of the creditors and none of the legatees are parties.

There is now pending in this court an accounting proceeding in this estate. If it appears in the pending accounting proceeding “that there is a surplus attributable to creditors or persons interested” (section 2728, C. C. P.), a supplemental citation may issue to all parties interested in the estate for a final and conclusive adjudication concerning the rights of every one interested in the estate. Such a final decree would necessarily dispose of the very questions raised in this proceeding.

I will therefore dismiss the petition, without prejudice, however, to the enforcement of any rights of the petitioner in any other proceeding or action.