In re Cunard — 27 N.Y. St. Rep. 128

Majority

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In the Matter of the Application of Bache Cunard, Ancillary Adm’r, etc., of Edward Cunard.

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

1; Executors and administrators—Discovery—Code Oiv. Pro., §§ 2706-2714.

Sections 2706 to 2714, Code Oiv. Pro., are not intended as a substitute for ordinary civil remedies where the latter are alone appropriate.

2. Same.

Where an administrator had filed an inventory specifying securities, many of which had been afterwards, with his consent, converted into cash and the proceeds paid over to those entitled, Held, that a proceeding under these sections for some of these inventoried securities was unauthorized, and that the proper mode of procedure was by an action for an accounting.

8. Same—Do not apply to the case of a simple indebtedness.

The above sections provide a summary means of discovery of specific sums or articles withheld or concealed, and do not apply to the case of a simple indebtedness; and even in the case of a specific sum or thing, the proceeding must be dismissed upon filing an answer setting up ownership, or lien.

Appeal from an order of the surrogate denying an application of the petitioner for the examination of Charles Gr. Francklyn, and dismissing the proceedings against him.

William C. Beecher, for app’lt; John Notman, for resp’t.

The petitioner entirely misconceives the purpose and scope of §§ 2706 to 2714 of the Code of Civil Procedure. These sections were not intended as a substitute for ordinary civil remedies in cases where the latter are alone appropriate. The object was to provide a summary means of discovery, and, in case of a mere naked possession of the decedent’s “ money or other personal property,” to compel delivery to the legal representative. In the case of money, it must be a specific sum tortiously withheld, not merely money due or-belonging to the deceased in the sense of an indebtedness. Matter of Nay, 6 Dem., 346 ; 19 N. Y. State Rep., 259; Matter of Knittel, 5 Dem., 371 ; 7 N. Y. State Rep., 752. So as to the personal property in general. It must be some definite thing upon which the person proceeded against has no possessory claim, and which can be described in the decree. § 2712.

Thus, the executor or administrator is entitled, without delay, to make a full and complete inventory, to frustrate fraudulent concealment of the decedent’s personalty and to reduce the latter to executorial possession. In effecting this purpose, he has the efficient aid of the statute. Where, however, there has been neither concealment nor withholding, the executor should be remitted to his appropriate action.

Even where there is a withholding, the statutory proceeding must be dismissed upon the filing of a duly verified answer, setting up ownership, or possession by virtue of a lien or special property. § 2710.

In the case at bar, the statute has been resorted to without a shadow of necessity. The administrator’s remedy, even upon the facts stated in his petition, is plainly an action for an accounting. Upon the entire case, however, as presented by the answer, and not in any way replied to or rebutted, the application is wholly without merit. It appears that the petitioner long since filed an inventory, which specifically included the very property now sought to be discovered. This proceeding was therefore unnecessary in aid of a proper inventory. It further appears that the petitioner left this very property in the respondent’s hands under a special arrangement, fully authorizing its use, conversion and re-investment from time to time. It seems too that the securities in the respondent’s hands, when Mr. Cunard died have long since been converted under this very arrangement; for it is alleged that in September, 1883, the respondent paid to the petitioner indvividually the sum of about $300,000, partly for himself and partly for a brother and sister of the deceased, as their proportion of the estate.

Now if the respondent has not fully accounted for his doings under the arrangement in question, the petitioner has doubtless his equitable remedy.

But it is idle to speak of the assets which may yet remain in his hands unaccounted for as “money or other personal property” of the decedent withheld from the administrator within the meaning and spirit of this act. The application was an attempt to use this summary procedure to effect an end entirely foreign to the

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purpose for which the statute was designed. It was properly denied, and the order appealed from should be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.