Allen v. Fahy

30 Misc. 377, 63 N.Y.S. 1031

• Court: New York Supreme Court
• Decided: January 15, 1900
• Status: Published

Opinion

Nash, J.

The sureties upon the bond of a general guardian are 'not responsible for money which may come to the hands of the guardian from the sale of the real estate of his ward. Muir y. Wilson, Hopkins Oh. 512; cited and approved, Cook v. Lee, 6 Paige, 158. Therefore as to the sum of $970.32 stated in the decree of the Surrogate’s Court to have been received by the guardian in proceedings in Monroe County Court for the sale of the interest of the infant in real estate, and as to which it is stated in the decree that it is without prejudice to any defense the sureties of the guardian may have, the plaintiff is without remedy as against the defendants.

The complaint must he wholly dismissed for the reason that it does not allege that an execution was issued upon the surrogate’s decree before the commencement of the action. Code Civil Procedure, § 2607. A demand only is alleged. The plaintiff having arrived at full age the action is in effect brought by him in his own behalf to recover against the sureties of the guardian upon his official bond, and clearly within the provisions of that section of the Code. Findings may be submitted.

Ordered accordingly.