In re the Accounting of Kerrigan

20 Misc. 2d 1, 193 N.Y.S.2d 798, 1959 N.Y. Misc. LEXIS 2431

Opinion

John D. Bennett, S.

By order to show cause the petitioner, the surety company on the bond of the former administratrix, seeks to vacate and set aside an accounting decree in this estate dated August 4, 1959, on the grounds that it was not made a party, and further, that certain other corporations against which the estate allegedly has claims should also be made parties.

The decree of August 4, 1959, which reopened a previous decree in this estate, fixed and determined the former administratrix’ liability to this estate in the amount of $25,932.

The motion is granted to the extent that the decree of August 4, 1959, is reopened and set aside as to the petitioner and is in all other respects denied.

The proper procedure to determine the liability of a surety company on its bond in this court would be a proceeding brought by the successor representative under section 115-a of the Surrogate’s Court Act. In such a proceeding it would be proper for the court to entertain an application that “ Citation * # * issue in such proceeding to such other persons interested as the surrogate deems necessary ” (Surrogate’s Ct. Act, § 115-a). At such time the court will determine the propriety of bringing in other parties to the proceeding.

The petitioner is given 20 days from the service of a copy of an order to be settled hereon, or 20 days from the signing of its own order, to interpose any pleadings in the reopened accounting proceeding.

Settle order on 5 days’ notice.