People v. Downing — 6 N.Y. Super. Ct. 189

Majority

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The People v. Downing and others.

Headnote

A decree or judgment of a court of competent jurisdiction cannot be impeached for fraud in a collateral proceeding. There must be a direct application to set it aside for that cause.

In an action upon an administration bond, which by a decree of the surrogate was directed to be prosecuted, evidence tending to show that the decree was obtained by fraud or collusion is inadmissible.

It is no answer to an action on such a bond, that the parties interested in the decree had agreed that the administrator in whose hands the funds were, might retain the same by paying interest therefor. Such a defence cannot be received without opening the decree.

Although the condition of an administration bond is joint, the obligation of the administrators to account is in its nature several. Henee a decree upon such accounting is properly, if not necessarily several. • An action upon the bond is therefore proper, founded upon such several accounting.

It is no defence to an action upon an administration bond that one of the defendants, who was a co-administrator with the one who made the default, is entitled to a share in the decree. The action being in the name of the people, who are the obligees of the bond, the recovery must be for the entire amount according to the decree, without reference to the interests of the parties entitled to share in it. If there be any question as to the distribution of the fund, it is to be determined in the surrogate’s court.

(Before Oakley, Oh. J., and Campbell and Paine, J. J.)

Sept. 21;

Sept. 28, 1850.

This was an action of debt against James Raymond and William H. Sackett, administrators of Henry Raymond, deceased, and against Downing and Falconer, tbeir sureties, in tbe bond given upon granting tbe letters of administration.

Tbe declaration is fully stated in tbe report of tbe case on tbe demurrer thereto. (Ante, vol. ii. p. 81.)

Tbe defendants, Sackett and Raymond, did not appear. Downing and Falconer pleaded non est factum,-and by stipula

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tion were allowed under it to give evidence of special matter. Upon the trial before Yanderpoel, J., in June, 1819, the plaintiff’s counsel read in evidence the administration bond, the petition and order for accounting, and the decree of the surrogate upon such accounting, dated September 16, 1816, finding that the defendant Sackett had remaining in his hand, as administrator, the sum of $1986.10, and directing him to pay the one-third part to the widow of the intestate, and the remainder to his son James, the before-named administrator. Also the petition of the widow, showing that the defendant Sackett had not complied with the order to pay over the fund remaining in his hands, and the decree of the surrogate upon such petition, directing the bond to be prosecuted. The plaintiff then rested.

The defendant’s counsel offered to prove that Fanny Baymond, the widow, and James Baymond, the son, had released the administrators from paying over fhe money to them, and agreed that the defendant Sackett might retain it for his own use, he paying interest therefor; which evidence was objected to, and excluded, on the ground that such arrangement, if ever made, was prior to the surrogate’s order of 16 Sept., 1816.

The defendant’s counsel further offered to prove that by collusion between the parties, viz., Sackett, and Fanny and James Baymond, the surrogate was induced, on a false and fraudulent accounting, to make his decree for the payment of more money than was due from the administrators, or either of them, with an understanding between the parties that Sackett was to refute to pay, and a suit was then to be brought against the sureties, both Sackett and Baymond being insolvent, and Fanny Baymond dead; which testimony was objecte'd to, and excluded by the court.

The defendant’s counsel then moved for a nonsuit, on the grounds: That the condition of the bond was joint, and the order to pay was several, viz., on Sackett alone, and- not on Sackett and Baymond; That if the defendants, the sureties, were to be held liable for the act of. one, as for the acts of "both administrators,- and thus made responsible on the bond, the

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plaintiffs were not entitled to recover, tbe administrator, James Raymond, being tbe only party in interest, and seeking thus to take advantage of bis own wrong; — and, 3. That the defendants were not liable, except for tbe joint acts of tbe administrators.

Tbe motion for a nonsuit was denied. Tbe defendant’s counsel further insisted, and requested tbe court to charge, that tbe verdict for tbe plaintiff should be only for tbe one-tbird ordered to be paid to Fanny Raymond, the order having been made on her sole petition. Tbe court declined so to charge tbe jury, and tbe defendant’s counsel excepted to tbe decisions adverse to them.

Tbe jury, under tbe charge of tbe court, found a verdict for tbe plaintiff for $2303.11. The defendants moved for a new trial.

Jcrna. Miller, for tbe plaintiff.

F. Tillou, for tbe defendant.

By the Court.

This was an action brought in the name of tbe people, on an administration bond, against tbe defendants, who were sureties. Administration was granted on tbe estate of Henry Raymond to James Raymond and W. H. Sackett. They proceeded in the administration of tbe estate, and not managing it satisfactorily to tbe widow, she presented her petition to tbe surrogate to have them account. The accounting took place, and it resulted in a decree that Sackett had in his possession property of the estate of Henry Raymond, to a large amount; and be was ordered to pay over to tbe widow one-tbird, and the balance to James Raymond bis co-administrator. A demand was made upon Sackett to comply with tbe terms of tbe decree, which be refused, and this suit was instituted. Tbe declaration sets out all tbe proceedings before the surrogate. Tbe defendants allege in their defence that the decree in tbe surrogate’s court grew out of a fraudulent conspiracy between ‘the widow and the two administrators; and that

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Sackett, being utterly insolvent and irresponsible, suffered judgment to go against him, by default, to a larger amount than was due.

The question to be determined is, whether such a defence can be interposed. We think not. The decree against Sackett was obtained in a competent court, and cannot be impeached in a collateral proceeding. There is a way in which the decree, if it has been obtained through fraud, may be vacated; but that must be by a direct application for the purpose. No judgment rendered in a court of competent jurisdiction can be impeached in a collateral matter for fraud.

Several cases were cited by counsel from the courts of other states, which are said to sustain such a defence. But however the rule may be elsewhere, in reference to this question, it clearly is not the law here.

There were several other questions presented in the case. An offer was made by the'defendant to prove that Fanny Rajunond and James Raymond had, before the decree of the surrogate, agreed with Sackett, the administrator, that he might retain the money in his hands, he paying them interest for it. If such an agreement had any operation, it might have been a reason why the decree should not have been made; but it is clearly no answer to the action on the bond, for the non-performance of it. Such a defence cannot be received without opening the decree.

It was objected, secondly, that the condition of the bond being joint, a separate action against Sackett does not come within it. Although the condition is joint, the obligation of the administrators to account is, in its nature, several, and the decree, therefore, is properly, if not necessarily several.

Thirdly, It was contended that there could be no recovery for the share of the estate belonging to James Raymond, he being one of the defendants, and the action in part being for his benefit. The action is on the bond, in the name of the people, the obligees. And the recovery must be for the amount of the money in the hands of the defaulting administrator, according ■to the decree, without reference to the rights of tiie parties ulti

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mately claiming it. When the money comes into the surrogate’s court, questions may arise as to the disposition of it, which cannot properly be considered here.

The motion for a new trial must be denied.