Frothingham v. Hodenpyl — 41 N.Y. St. Rep. 398

Majority

p. 398

Thomas G. Frothingham et al., App’lts, v. Anthony I. G. Hodenpyl et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed November 13, 1891.)

Headnote

1. Creditors’ action—Parties.

A mere creditor at large, having no lien by attachment or execution levied, or judgment obtained and execution returned unsatisfied, cannot attack the validity of judgments entered against his debtor on an offer.

2. Executors and administrators—Accounting.

A creditor of a firm in which executors are partners as such cannot call the executors to account in respect to the estate of which they are executors.

Appeal from judgment of special term dismissing complaint. F. Bien, for app’lts; Hays & Greenbaum, for resp’te.

This is an action brought by a general creditor of the firm of Stern & Stern to have the judgments referred to in the case of Columbus Watch Co. v. Hodenpyl, decided herewith, declared null and void as against the plaintiff, and to have the executions issued thereon set aside, and for a preliminary

p. 399

injunction restraining the defendants from receiving any portion of the money arising upon the executions, and calling upon the defendants Dinah Stern as executrix and Simon Stern as executor of Joseph Stern, deceased, to render an account of their trust in the manner provided by law, etc.

It is perfectly clear that the plaintiffs in this action, being merely creditors at large, having no lien either by attachment or execution levied or judgment obtained and execution returned unsatisfied, cannot attack the validity of these judgments.

Neither are they in a position to call the defendants Dinah Stern and Simon Stern as executrix and executor of the last will and testament of Joseph Stern, deceased, to an account. They are not creditors of the estate of Joseph Stern; they are simply creditors of the firm of Stern & Stern, in which the estate of Joseph Stern has an interest. As well might the creditor at large of a firm call upon a copartnership to account in regard to the administration of their trust, as for the plaintiffs to attempt to call two of the partners of the firm of Stern & Stern to account in respect of the estate of which they are executors.

It is only creditors of an estate that may call the executors to an account.

The judgment should be affirmed, with costs.

Daniels and Ingraham, JJ., concur.