In re the Accounting of Kurtzman — 2 N.Y. St. Rep. 655

Majority

p. 655

Matter of the Accounting of John O. Kurtzman, Administrator, etc., of Edward Chlton, deceased.

(Supreme Court, General Term, First Department,

Filed June 28, 1886.)

Headnote

1. Executors and administrators—Failure of an executor to pat over MONEY AS REQUESTED BY THE TERMS OF A DECREE, IS PUNISHABLE AS a contempt—Code of Civil Procedure, g§ 2552, 2554, 2555.

The surrogate has power to punish an administrator for contempt for failure to pay an amount allowed to special guardian by and under a decree.

2. Same—Affidavit of his inability to pay of no value.

The fact that upon the return day the administrator submitted an affidavit, in which he sought to purge himself of the contempt, the chief element of which was that he had no money or property of his own from whic.i he could pay the sums awarded, furnishes no reason for setting aside the order. The averment of his inability to pay is of no value.

Appeal from an order of the surrogate adjudging the administrator guilty of contempt because of his failure to pay the amount allowed to the special guardian by and under the decree.

W. T. Birdsall, for app’lt; Gibson Putzel, special guardian and resp’t in person.

Whatever doubt there may have been before the Code as to the power of the surrogate to punish an administrator for contempt in proceedings of this character; there can no longer be any doubt as to such power and its extent. See §§ 2555, 2552, 2554; see, also Matter of Snyder, 34 Hun, 302 . The proceedings for the purpose of justifying the order adjudging the administrator herein guilty of contempt appear to have been regular, the decree relating to the payment of the money was entered, a certified copy of it was served upon the administrator, and a demand made upon him to pay it, which he refused. An order to show cause was then served upon him setting forth the facts, and he appeared upon the return day of the order to show cause, and submitted an affidavit in which he sought to purge himself of the contempt, the chief element of which was that he had no money or property of his own from which he could pay the sums awarded to the referee and special guardian. It is true that the affidavit also contained a statement of alleged wrongs perpetrated upon him and his counsel by the referee and the special guardian upon the accounting.

But these latter allegations were irrelevant. The averment of his inability to pay the sums under the decisions was of no value. It was too general and therefore furnished no answer whatever to the following: Matter of Snyder, supra; Matter of Steinert, 29 Hun, 301 .

p. 656

For these reasons the order appealed from must be affirmed, with ten dollars costs andrdisbursements.

Daniels, J., concurs.