Smith v. Lusk

2 Dem. Sur. 595

• Court: New York Surrogate's Court
• Decided: February 15, 1884
• Status: Published

Opinion

The Surrogate.

I think that the application must be denied. It will be seen, by reference to §§ 2847-2850, inclusive, of the Code, which declare who may compel a general guardian to account, and point out whom he must cite to attend his accounting, that nothing is said as to a surety. He was not, therefore, entitled to any notice of the proceeding, and, as he was not a proper party to it, could not have been heard in reference to it, had he been present. If this be so, then he is not in a position to make this application. If the application were granted, and a new accounting had, he would still be powerless to effect any different result.

By § 2736, following the statute of 1860 (Sess. Laws, 3?. 569), a surety in the bond of an executor or administrator, is authorized to call the principal to an accounting, but I know of no such provision as to the surety of a general guardian.

Without stopping to criticise the sufficiency of the facts stated in the petition to warrant the setting aside of the decree, under subd. 6 of § 2481, the relief sought must be refused for the reasons stated.