Schultz v. Cookingham

37 N.Y. Sup. Ct. 443

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.