In re Lawyers' Surety Co. — 54 N.Y.S. 926

Majority

p. 926

(25 Misc. Rep. 136.)

In re LAWYERS’ SURETY CO. OF NEW YORK.

(Surrogate’s Court, New York County.

November, 1898.)

Headnote

Executors and Administrators—Bonds—Release op Sureties.

Code Civ. Proc. § 2600, authorizing sureties on administrators’ bonds to apply to be released from future responsibility, does not apply to a bond for the sale of realty given under section 2766, where the proposed penalty for failure to give new sureties is the vacation of the decree of sale, and the evidence shows that no future breach can occur, and that the duties for the performance of which the bond was given cannot be performed, and hence that a new bond would not be proper; since section 2601 prescribes as a penalty a revocation of the letters- if new sureties are not furnished.

Petition by the Lawyers’ Surety Company of New York to be relieved from further liability on the bond of Mary F. Hanifin, administratrix of the estate of-Margaret McCormick, deceased.

Petition denied.

p. 927

Norwood & Dilley, for petitioner.

Konald K. Brown, for administratrix.

The application of the petitioner to be released as surety upon the respondent’s official bond as administratrix is granted, conditioned upon the filing of a bond with new sureties within five days from the service of the order herein upon her or her attorney, in default of which letters will be revoked. As to the application made for the release of the surety from the obligation of the bond given by the respondent under section 2766 of the 'Code of Civil Procedure, I doubt whether, notwithstanding the general language used in section 2600, its provisions apply to such a bond. The penalty prescribed by section 2601 in the event that new sureties are not furnished is the revocation of the respond■ent’s letters. This would be appropriate where the sureties are on a bond required in order to obtain or retain letters, and to continue the management and custody of the estate, but not in a case like the present one. The proposed order does not contain any provision for such revocation, but one for vacating the decree for the sale of the decedent’s real estate in case new sureties are not furnished. I know of no authority for such a direction here. As the ultimate object of proceedings under section 2600 is to procure the release of the surety from responsibility on account of •any future breach of the conditions of the bond, and in this case it is shown by the answering affidavit, and not denied by the petitioner, that no breach of the condition of this bond has occurred, or can possibly occur in the future, and as the duties to secure the faithful performance whereof by the principal the bond was given are now impossible of performance, no direction for the filing ■of a new bond would be proper.

Application denied.