Hood v. Hayward — 3 N.Y. St. Rep. 153

Majority

p. 153

Maria L. Hood v. John N. Hayward, impleaded.

(Supreme Court, General Term, Second Department,

Filed July 23, 1886)

Headnote

Stay of proceedings—When action on bond of non-resident executor

SHOULD BE STAYED.

In an action brought on a bond of a non-resident executor, f'e principal breach alleged being the failure to comply with a decree of the surrogate for the payment of certain moneys, the decree having been affirmed by the

p. 154

supreme court, and an appeal therefrom taken to the court of appeals; on application by the surety. Held, that this action should be stayed until after the determination of the appeal on conditions.

This action is brought on the bond of a nonresident executor. The principal breach of the bond alleged (though there are others) is the failure to comply with a decree of the surrogate for the payment of over thirty-five thousand dollars. The decree of the surrogate having been affirmed by this court is now on appeal in the court of appeals. The surety applied for a stay of this action till the determination of such appeal. The decree of the surrogate is cbnclusive in this action, and the breach of the bond for failure to comply with it will alone exhaust the whole liability on the bond. If the decree should be reversed, the judgment rendered in this action be must set aside. We think, therefore, this action should be stayed until after the final determination of the appeal from the decree of the surrogate, but, as a condition, the defendant .should give a bond in the sum of $12,000, with two sureties to pay any judgment awarded against him.

Order appealed from should be reversed, and proceedings in this action be stayed upon defendant giving the above .mentioned bond.

Barnard, P. J., concurs, Dykman, J., not sitting.