In re the Compulsory Accounting of Waring

1 Gibb. Surr. 49, 7 Misc. 502, 28 N.Y.S. 393, 58 N.Y. St. Rep. 797

Opinion

Coeein, S.

The executions are clearly void, and should be set aside. They should have run against the property of Oscar Waring and Wilbur F. Washburn, and not against the property of the estate. Section 2554 of the Code permits execution to be issued against the property of the party directed to make the payment. The next section authorizes, in a proper case, the surrogate to punish the party for contempt for not making the payment as decreed. That, of course, would be a proceeding against his own person. In Peyser v. Wendt, 2 Dem. 221, the surrogate of New York took the view that the execution was properly issued against the property of the executor and cited authorities on the subject. The Court of Appeals has held the same in Power v. Speckman, 126 N. Y. 354-359. See form of execution in Redf. Pr. (5th ed.) 1009, substituting, however, the letters “ Y. Z.” for “A. B.” in last clause.

The executions must, therefore, be set aside, and all proceedings under them consequently fall.

Motion granted.

Note. — An execution to enforce a decree directing payment by an executor as such must run against his property. (Matter of Quackenbos, 38 Misc. 66.)