Bick v. Murphy

2 Dem. Sur. 251

• Court: New York Surrogate's Court
• Decided: July 15, 1883
• Status: Published

Opinion

The Surrogate.

On the 8th of June last, Henry Bick, one of the sureties upon the bond of the .administrator of this estate, filed his petition asking to be relieved from further liability. To this petition was attached that of Eliza Murphy, one of the decedent’s next of kin, praying that the administrator be compelled to give a new bond. These two petitions were together made the basis for an order to show cause why Bick’s co-surety should not appear before the court and justify as to Ms sufficiency, and why the petitioning surety should not be released, and why the administrator should not give a new bond, or in default thereof be removed from his office, and why the petitioning next of kin should not be thereafter granted letters of' administration.

Section 2597 of the Code of Civil Procedure establishes the practice whereby any person interested in an estate may take steps to compel an administrator to give a new bond, or, in default thereof, be removed from office.

Section 2800 prescribes the procedure whereby a surety on a bond may procure his release from respon- . sibility on account of a future breach. In the one case, the Code provides that the Surrogate shall issue a citation, if it appears that there is reason to believe the allegations of the petition are true; in the other case, citation issues as of course. It is entirely irregular to combine these applications as they are combined in the present proceeding, which must therefore be dismissed.

The steps which have been taken by the respondent for substituting a new bond are also irregular, and all that has been done in that regard will be held for naught.