In re Rooney's Estate — 56 N.Y.S. 855

Majority

p. 855

(26 Misc. Rep. 106.)

In re ROONEY'S ESTATE.

(Surrogate’s Court, New York County.

January, 1899.)

Headnote

Municipalities—Public Administrator—Property op Unknown Heirs— Comptroller—Demand by Persons Entitled.

Greater New York Charter, § 261, providing that no action shall be maintained against the city unless the petition shows that at least 30 days have elapsed since the demand was presented to the comptroller for adjustment, and that he refused to do so, applies to a claim for moneys paid to the comptroller by the public administrator belonging to unknown heirs, since Laws 1898, c. 230, § 29, makes the city responsible for all such moneys, and gives those entitled to them the same remedies against the city as they would have against any executor.

Application of certain persons claiming to be relatives of Mary Rooney, or Donnelly, deceased, for an order directing the chamberlain to pay over to them certain moneys deposited with the comptroller of the city of New York by the public administrator.

Dismissed.

Julian B. Shope, for petitioners.

John Whalen, Corp. Counsel, for city of New York.

This application is made on behalf of alleged next of kin of the decedent, for the payment to them of certain moneys paid to the comptroller by the public administrator of the city of New York, upon his accounting, as administrator of this estate, for the benefit of the intestate’s next of kin, whose names were then unknown. A citation having been issued to the mayor, aldermen, and commonalty of the city of New York, to show cause why the application should not be granted, the coloration, on the return thereof, has appeared by its counsel, and asked for the dismissal of the proceedings, upon the ground that it is not shown by the petition that the claim or demand upon which this special proceeding is founded was presented to the comptroller for adjustment; that at least 30 days had elapsed at the time of the commencement of the proceeding since such presentation, and no adjustment or payment thereof had been made, as required by section 261 of the Greater New York charter. The city of New York, by section 29 of chapter 230 of the Laws of 1898, is made responsible and answerable for all moneys paid into the city treasury by the public administrator; and all persons entitled to receive such moneys are given the same remedies against said corporation therefor

p. 856

as they would have against any executor. I think the corporation counsel is right in his contention that the claim and demand made herein comes within the provisions of section 261, above cited, and the proceeding must be dismissed for the failure to comply with its provisions. As the decree under which payment into the city treasury was made appears to save the right of one Bryan Booney to assert any claim which he may have as next of kin of the decedent upon the fund, any citation hereafter to be issued should run to him as well as to the corporation; and appropriate allegations calling therefor should be contained in any new petition for the payment of the petitioners’ claim.

The proceeding is dismissed, without prejudice to the renewal of the application upon petition showing compliance with the provisions of section 261, aforesaid. Decreed accordingly.