Schultz v. Cookingham

New York Supreme Court

Schultz v. Cookingham

37 N.Y. Sup. Ct. 443

DecidedSeptember 15, 1883

StatusPublished

This text of 37 N.Y. Sup. Ct. 443 (Schultz v. Cookingham) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schultz v. Cookingham, 37 N.Y. Sup. Ct. 443 (N.Y. Super. Ct. 1883).

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Opinion

Peatt, J.:

Section 2344 of the Code of Civil Procedure provides that where a person of whose property a committee has been appointed dice during his inco'mpetency, the property of the decedent must be administered and disposed of as if a committee had not been appointed.

The defendants Morgan L. Tail and Morgan L. Smith having been appointed as administrators of the estate of the deceased .lunatic, are therefore alone entitled to bring an action for.an accounting against the committee; and unless they refuse to perform their duty in this respect the plaintiff, as next of kin of the deceased lunatic, is not entitled to do so. (Woodin v. Bagley, 13 Wend., 453; Beecher v. Crouse, 19 id., 306; Western R. R. Co. v. Nolan, 48 N. Y., 513; Jenkins v. Freyer, 4 Paige, 47.)

There is no allegation in the complaint of such refusal, or of any fact showing that the administrators are disqualified for -any reason to bring such action or proceed with the accounting.

The order appealed from must therefore be reversed, with costs.

Present — Dykman and Peatt, JJ. Barnaed, P. J., not sitting.

Order granting injunction and judgment overruling, demurrer by defendant reversed, with costs.

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Peatt, J.:

Section 2344 of the Code of Civil Procedure provides that where a person of whose property a committee has been appointed dice during his inco'mpetency, the property of the decedent must be administered and disposed of as if a committee had not been appointed.

The defendants Morgan L. Tail and Morgan L. Smith having been appointed as administrators of the estate of the deceased .lunatic, are therefore alone entitled to bring an action for.an accounting against the committee; and unless they refuse to perform their duty in this respect the plaintiff, as next of kin of the deceased lunatic, is not entitled to do so. (Woodin v. Bagley, 13 Wend., 453; Beecher v. Crouse, 19 id., 306; Western R. R. Co. v. Nolan, 48 N. Y., 513; Jenkins v. Freyer, 4 Paige, 47.)

There is no allegation in the complaint of such refusal, or of any fact showing that the administrators are disqualified for -any reason to bring such action or proceed with the accounting.

The order appealed from must therefore be reversed, with costs.

Present — Dykman and Peatt, JJ. Barnaed, P. J., not sitting.

Order granting injunction and judgment overruling, demurrer by defendant reversed, with costs.

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37 N.Y. Sup. Ct. 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schultz-v-cookingham-nysupct-1883.

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