Seaman v. Whitehead

Headnote

Attachment as fen' a contempt — a smrogate cannot issue it to enforce payment by executors of a sum of money directed to be paid by them, by a dewee made on a fmal accounting.

Appeal from an order, made by the surrogate of the county of Dutchess, directing an attachment to issue against the appel lants, as executors, for a failure to pay to the respondent the sum of $163.65, as required by a decree, made upon their final accounting, entered May 31, 1878, and denying a motion by the executors to open the said decree, and for a rehearing.

With reference to the attachment, the court at General Term said: “We think the learned surrogate erred in ordering an attachment to issue against the executors for the non-payment of the sum ordered by the decree, on final accounting, to be paid to the respondent Whitehead. The case of Watson v. Nelson ( 69 N. Y., 536 ) seems decisive upon this point. The surrogate could only enforce a final decree, or an interlocutory order for the payment of money by an execution against the person, or if the debt ordered paid was founded upon contract, by an execution against the property. This result is arrived at by the Court of Appeals after a very full examination of the statutes. The case of Seaman v. Duryea ( 11 N. Y.,' 324 ), which seems to favor the view that an attachment could issue as for a contempt, upon non-payment of moneys by a guardian, under a surrogate's order, is considered in

the biter case of Watson v. Nelson. The court say that the question whether the proper process was a commitment, as for a contempt, or a precept or execution, was not discussed or considered in Seaman v. Duryea. That part of the order, therefore, which directs the attachment to issue as for a contempt should be reversed.”