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Supreme Court, August, 1900.

[Vol. 32.

"This action having been duly referred to me as referee to hear and determine the issues herein, and the same having been duly tried before me as such referee, and certain evidence having been taken subject to the future ruling of the referee; now, after due consideration, I find that the objections of the defendant to the admissability of all the evidence reserved for decision should be overruled and said evidence allowed to stand. I also find, adjudge and determine that the plaintiff's complaint herein should be dismissed with costs against said plaintiff, and in favor of said defendant, and I hereby order judgment to be entered accordingly. "Dated, April 11, 1900.

" HENRY L. GATES, Referee."

Thereafter defendant taxed costs and entered judgment upon said purported decision, dismissing plaintiff's complaint. Upon April 13, 1900, plaintiff through his attorney served due notice terminating said reference to said Gates; and he also duly objected to the taxation of costs and entry of judgment by defendant.

An examination of this memorandum, made and handed down by the referee in the light of the provisions of section 1022, makes it too clear for argument that it is insufficient. Concededly it does not state "the facts found and the conclusions of law," and although not conceded, it seems to me equally clear that the memorandum is not a "decision stating concisely the grounds upon which the issues have been decided," etc. The case of Lopez v. Merchants & Farmers' National Bank, 18 App. Div. 427, 430, 432, cited by defendant, sufficiently sustains this view.

The case just cited is referred to by defendant as an authority for the proposition that even though the purported decision of the referee was insufficient, a judgment might be entered which would be considered upon appeal by the appellate court, and from which I assume defendant desires to have it inferred that it is not necessary to vacate the judgment. It is true in that case the Appellate Division, while holding the memorandum decision of the court insufficient, did consider the appeal, and the evidence upon which the judgment was entered. There were other parties and other issues in the action aside from those covered by this incomplete portion of the decision, and no one offering any objection or urging any other course, there was no reason why the court should not take the course it did if it saw fit. In this case, however, the

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Supreme Court, August, 1900.

question of the incompleteness and irregularity of the referee's action is distinctly raised by motion, and it is well settled that that practice is correct, and that the question at issue having been raised by motion, the judgment should be vacated.

It is urged by the defendant that if it should be held that the memorandum of the referee is insufficient, the case should be sent back to him to enable him to comply with the provisions of section 1022 either by stating findings of fact and conclusions of law or by stating the grounds upon which the issues in the case have been decided.

Cases are cited in behalf of this course of procedure, but in substantially all of them the question arose where the case had been tried before the court, and none of them were cases of a referee appointed with power to hear and determine an action in the Supreme Court. Petrie v. Trustees of Hamilton College, 92 Hun, 81, is an authority in this department against such a course of procedure. In this case the facts weigh strongly against following it. The referee has made what he regarded and considered as his decision in the case, which would ordinarily terminate his duties and jurisdiction. In addition to that the time within which he might act has expired, and a notice has been served terminating the reference. Under such circumstances, I think an attempt should not be made to send a case back to the referee, but that the parties must submit to the misfortune of a mistrial.

In Reynolds v. Aetna Life Ins. Co., 6 App. Div. 254, where the justice who tried the case had made an incomplete or insufficient decision, and thereafter had been appointed to the Appellate Division, it was held that the case could not be sent back to the trial court to supply the defects in the decision, and that the parties must submit to a mistrial. This case seems to be quite as strong for the moving party.

The motion to vacate the judgment is, therefore, granted, with ten dollars costs, and the application to have the case sent back to the referee for further findings or decision is denied.

Motion granted, with ten dollars costs.

Supreme Court, August, 1900.

[Vol. 32.

JAMES H. FLANAGAN, as Administrator, Etc., of ISAAC R. SCOTT, Deceased, Plaintiff, v. THE FIDELITY AND DEPOSIT Co., OF MARYLAND, Defendant.

(Supreme Court, Oneida Special Term, August, 1900.)

Administrator Right of successor to sue surety of defaulting · Code C. P., §§ 449, 2608.

A complaint by the successor of defaulting administrators, who failed to pay distributive shares, against their surety in the court of the surrogate, is not demurrable upon the ground that the distributees should sue, as section 2608 of the Code of Civil Procedure expressly gives the successor administrator this right and he may also sue under section 449 of said Code.

DEMURRER to plaintiff's complaint upon the ground that it does not state facts sufficient to constitute a cause of action.

J. Frank Rogers, for plaintiff.

Risley & Love, for defendant.

HISCOCK, J. The defendant executed a bond in the form prescribed by law as surety with and for Albert H. Chaffee and Mary S. Hall as administrator and administratrix, respectively, of the estate of Isaac R. Scott.

In December, 1899, after various proceedings, a decree was duly made by the surrogate of Oneida county, which, in effect, adjudged that said administrator and administratrix had in their hands of the estate of said Scott, deceased, a balance of $5,352, and that said administrator and administratrix after the reservation of small sums for their commissions, counsel fees, etc., should dispose of the balance of $4,116.75 by paying to one Sarah A. Scott the sum of $1,381.61, to one Mary S. Hall the sum of $927.95, and to one Sullivan, as assignee of Edward S. Scott, $1,409.85, being the distributive shares of said persons, respectively, in the estate of said Scott.

Said administrator and administratrix failed to comply with said decree and never paid said sums or any part thereof, and there

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Supreme Court, August, 1900.

after, and on or about January 17, 1900, the letters of administration granted to them were duly revoked, and the plaintiff was duly appointed administrator of said Scott in their places, and he duly qualified and entered upon and ever since has continued in the discharge of his duty as such.

This action is based upon the failure of said administrator and administratrix to comply with the decree of the surrogate above mentioned by paying over the sums above specified, and it is sought to sustain this demurrer upon the sole ground that the action upon the bond should have been brought by and in the names of the persons to whom said sums were directed to be paid as aforesaid rather than by the administrator of the estate who has succeeded the defaulting representatives.

I do not think the demurrer should be sustained upon the ground in question. Undoubtedly under the provisions of section 2607, Code, an action under the proper conditions could be maintained by the persons to whom said sums were respectively directed to be paid as aforesaid. But, upon the other hand, section 2608 seems to provide clearly enough for the maintenance of an action upon the bond in question by the plaintiff in question as successor to the administrators whose letters have been revoked.

In the first place, we are to have in mind that under the general provisions of law as well as under the specific provisions of section 2605 of the Code, the plaintiff as successor is charged with completing the execution of the trust committed to his predecessors. A decree has been made against his predecessors settling the amount of money on hand to be distributed, and it will be the duty of this plaintiff to comply with that decree and carry out its provisions. We then come to the provisions of section 2608, which provides that "Where letters have been revoked by a decree of the surrogate's court, the successor of the executor, administrator, or guardian, whose letters are so revoked, may maintain an action upon his predecessor's official bond, in which he may recover any money, or the full value of any other property, received by the principal in the bond, and not duly administered by him; The money recovered in such an action, is regarded as part of the estate in the hands of the plaintiff, and must be distributed or otherwise disposed of accordingly."

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The plaintiff's predecessors under the decree of the surrogate already referred to have on hand a certain sum of money, which

Supreme Court, August, 1900.

[Vol. 32.

has not been administered, and, therefore, the case comes explicitly within the wording of this section of the Code. If the balance in question was on hand, and no decree had been made directing how it should be paid over and distributed, I assume that the contention now being made here would not be urged. It does not seem to me that the case comes any less within the provisions of the section quoted, because a decree has been made providing just how the fund shall be administered. The fact remains the same that there is a sum on hand which has not been administered, and that this plaintiff under the provisions of the law is entitled to bring an action upon the bond to recover it, and when he has done that he will be obliged to carry on the administration in which his predecessors defaulted.

In connection with the sections already referred to, it is to be borne in mind that section 449 of the Code expressly authorizes plaintiff to maintain this action for the benefit of the real parties in interest without joining them.

The ordinary findings and interlocutory judgment may be entered overruling plaintiff's demurrer with thirty dollars costs and disbursements, and giving the usual leave to defendant to serve an amended pleading.

Ordered accordingly.

SIMON D. PADDOCK, Plaintiff, v. JAMES PALMER et al., Defendants.

(Supreme Court, Onondaga Special Term, August, 1900.)

Order to show

1. Practice - Motion to compel acceptance of answer cause Affidavit of merits. Where, after the plaintiff has returned an answer as insufficiently verified, the defendants serve notice of a motion to compel him to accept it and at the same time, and annexed thereto, serve an order, of shorter date than eight days, that he show cause on the date and at the place of the motion why he should not accept the answer, the court will disregard the motion as made on too short notice but will hear the matter on the order to show cause.

Where the notice of motion states the return day and place, it is not material that the order to show cause does not, and where the motion papers are entitled in the action, it is not material that the order to show cause is not.

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