In re Moderno — 17 N.Y.S. 781

Majority

p. 781

In re Moderno.

(Supreme Court, General Term, First Department.

February 18, 1892.)

Headnote

Executors and Administrators—Assignment of Claims against Estate.

An assignee of claims against an estate is a creditor, within the meaning of Code Civil Proc. § 3717, allowing the creditor of an estate to petition the surrogate’s court for the payment of his debt.

Appeal from surrogate’s court, BTew York county.

Petition by Adelaide O. Moderno, as assignee of claims against Antonio J. Moderno, deceased, for payment of the same by the temporary administrator of said decedent. Petitioner appeals from an order denying the petition.

Be-versed.

Argued before Van Brunt, P. J., and Lawrence and O’Brien , JJ.

Briesen & KnautTi, (Antonio Knauth, of counsel,) for appellant.

This application was made by the widow of the decedent, claiming to be a creditor of his estate, for a decree directing the temporary administrator to pay certain claims set forth in her petition. A portion of the claims refer to expenditures made by petitioner for services rendered by third parties to decedent in his life-time, such as hotel charges, nursing, etc., which were paid by her, and of which she became the assignee. Another portion relates to amounts expended by petitioner for receiving vault and funeral expenses, and another to expenditures in reference to proving satisfactorily the death of the decedent, and rendering assistance in and about the probate of the will. The surrogate refused to direct the payment of the claims of which the petitioner was assignee upon the ground that the assignee of a claim against a decedent has no standing in court under the Code, § 2717, to compel payment; and he also refused to allow the payment of the expenses in reference to the probate of the will upon the ground that the necessity of these expenditures was not stated, nor the particulars of the assistance rendered by the petitioner in and about proving the decedent’s death and the probate of the will. From that portion of the surrogate’s decree disallowing the assigned claims this appeal is taken. We think the learned surrogate erred in the construction of section 2717 of the Code, that an assignee of a claim against a decedent has no standing in court by reason of said section. The provision of the section is that a petition may be presented to the surrogate’s court by a creditor for the payment of a debt against the estate at any time after six months have expired since letters were granted praying for a decree directing the executor or administrator to pay the petitioner his claim. The assignee of a claim is certainly a creditor of the estate. The language of the section does not limit it to original creditors, but to any person who at the time of filing his petition is a creditor of the es-

Concurrence

p. 782

tote; embracing, therefore, those who have acquired their claims by assignment, as well as those who were original creditors; there being no distinction between the position of an assignee of a claim and the original owner of a claim if it had not been assigned. We think, therefore,.that, so far as the order denied the payment of the claims of which the petitioner was an assignee, it should be reversed, with $10 costs and disbursements.

Lawbence, J„ concurs.

I concur in the conclusion reached that, as assignee, she had the same status as the original creditor, under section 2717 of the Code. Though there was no formal assignment, the learned surrogate rightfully says “the voluntary payment [by petitioner] of decedent’s debts subrogated her to the rights of his creditors, and created an assignment to her of the respective amounts paid. ”