The complaint alleges that on the 17th of April, 1894, one Terence A. McCauley, who was also known as Thom,as A. Macaulay, died in the city of New York, possessed of certain personal property, among which were two patents issued by the United States government; that on the 23d of May, 1894, Daniel Macaulay was appointed by the Surrogate’s Court administrator of the estate of the said Terence A. McCauley, and letters of administration were issued to him; that the defendant gave a bond to the People of the State of New York, containing the usual conditions of administrators’ bonds, among which was that the said Daniel Macaulay should faithfully execute the trust reposed in him as-administrator, etc. It is further alleged in the complaint that the administrator took possession of and sold said above-mentioned patents for the sum of $5,000, which he received, but that, having received the money, he did not faithfully administer it nor distribute the same, but converted it to his own use, and did not faithfully execute the trust reposed in him as such administrator. It is further alleged that Daniel Macaulay removed with said property to the State of Massachusetts, and died, leaving no • property and no personal representative in this State; that on the 12th of September, 1898, the plaintiff was duly appointed administrator de Toonis non of the said intestate, Terence A. McCauley, and has qualified as such. It is further alleged that Daniel Macaulay never accounted as administrator, and that the plaintiff was unable to obtain jurisdiction over his estate for the purpose of compelling an accounting in the Surrogate’s Court, and *99that he had no adequate remedy at law by which jurisdiction could be acquired to compel an accounting of the proceedings of said deceased administrator. It is further alleged that Terence A. McCauley, the intestate, owed no debts at the time of his decease. The relief demanded is that the amount due from the said Daniel Macaulay, as administrator, be ascertained, and that the defendant be adjudged to pay to the plaintiff such sum, not exceeding $5,000, the amount of the bond.
To this complaint the defendant demurred upon the ground that the court had no jurisdiction of the subject of the action; that the-plaintiff had no legal capacity to sue because no order had been made permitting him to bring this action; that there was a defect of parties, in that the sisters of the said decedent and his niece, being his next of kin, should have been made parties to the action, and that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled and from the judgment entered upon that decision this appeal is taken.
The question as to the liability of the sureties upon an administrator’s bond for alleged defaults of their principal has been several times presented in this court in recent cases, and the question not only of the extent of that liability, but as to, the parties necessary in an action brought to enforce it, has been thoroughly examined and decided. It has been determined in this court, in circumstances very like this, that an action might be brought by one of, the next of kin of the intestate (Bischoff v. Engel, 10 App. Div. 240) or by a creditor (Scharmann v. Schoell, 23 id. 398). These cases determined most of the questions that are presented upon this appeal. But it is said that the administrator de honis non has no standing in court to maintain this action. This question also has been substantially decided by the case- of Walton v. Walton (4 Abb. Ct. App. Dec. 512). That was an action by the administrator de honis non against the personal representative of an executor who had died-without applying assets collected, to compel an accounting and. delivery of such assets. The complaint was demurred to upon the ground that the facts did not constitute a cause of action because the administrator de honis non had no interest in the property of the testator which had come to the hands of the executor and by him had been converted into money. This contention was sustained by *100the Supreme Court and judgment was entered for the defendant upon the demurrer, which was affirmed at the General Term; but upon appeal to the Court of Appeals the judgment was reversed, the court holding that whether the property remained in the hands of the original executor as uncollected assets, or whether the assets had been by him converted into money, they were still unadministered assets of the original estate, and as such the administrator dé bonis non was entitled to recover them, as the representative of the estate of which he had been appointed administrator. The same principle which permits the administrator de bonis non to recover assets in the hands of the personal representative of the .deceased executor is also operative to entitle him to maintain an action, against the surety under the authority of Bischoff v. Engel (supra) and Scharmann v. Schoell (supra). The defendant insists that these cases were not properly decided. But they were the subject of thorough examination and were determined on careful consideration,- and they must stand as the judgment of this court upon those questions.- ■ The point that the next of kin of Terence A. McCauley should have been made parties to this action is sufficiently answered by the-case of Walton v. Walton (supra). The. representative of the estate of Terénce A. McCauley, until it shall have been fully administered, is the administrator de bonis non, and all the rights of recovery which exist for the benefit of that estate are vested in him for the benefit of creditors if there shall turn out to be any creditors, and if there are no creditors, as is alleged in the complaint, then for the benefit of the next of the kin who will receive the estate in due course of administration from the plaintifí.
As to the further objection that the plaintiff has not legal capacity to sue because no order of the surrogate has been made granting him permission to bring an action, I am of the opinion that that objection is well taken, and that, therefore, the judgment cannot be sustained. The action is brought to recover the penalty of a bond, under seal, running in terms to the People of the State of New York. The ordinary rule in such cases is that no person can sue to enforce covenants contained in an instrument, except such as are parties to the instrument. (Henricus v. Englert, 137 N. Y. 488.) The bond in this case is one required by law, and is given for the benefit of all persons interested in the estate of Terence A. *101McCauley, of which. Daniel Macaulay was appointed administrator. The Code has prescribed the circumstances in, which an action may be brought upon such a bond in nearly all cases that are likely to arise. (Code Civ. Proc. §§ 2607-2609.) While this case is not one of those mentioned in either of those sections, yet they may be referred to for the purpose of ascertaining the policy of the law with regard, to the manner of bringing such actions.
Section 2607 provides for a case where, by a decree of the surrogate, the administrator has been required to pay a certain sum of money, and an execution has been issued against it upon that decree and returned unsatisfied, in which case the statute prescribes that the plaintiff in the execution may bring an action upon the administrator’s bond. Section 2608 refers to a case where letters have been revoked and a new executor or administrator has been appointed, and provides that such new appointee may maintain an action upon the official bond to recover money or the full value of property received by the. principal on the bond and not administered by him. In such case it is held that the money so recovered is regarded as part of the estate, and must be administered upon as such. In neither of these cases is it necessary that permission should be obtained to sue upon the bonds. The reason of this is clear. In each of these cases there is but one person who has any right of action. The surety upon the bond cannot be subjected, by reason of' any of the circumstances arising under either of those sections- of the Code, to more than one action. For that reason the only person who may sue upon the bond is ascertained as soon as the'right of action arises, and there is no danger of the- surety being vexed by more than one suit.
Section 2609, however, provides for a case where the letters of an executor have been revoked and no successor has been appointed in which case it is provided that any person aggrieved may sue upon obtaining an order from the surrogate granting him leave to do so. The person so suing is entitled to recover any money or the value of any other property received by the principal in the bond and not administered by him, and to the full extent of any injury sustained by the estate of the decedent by any act or omission of the principal. The Code provides that the money recovered in such an action must be paid by the sheriff or other officer who. collects it into the Surro*102gate’s Court, and that the surrogate must distribute it to the creditors or other persons entitled thereto. .This section provides for a case where the right of action may be vested in any one of several persons. By whomsoever the action is brought the surety is- liable for the full extent of- the defalcation of his principal, unless the . same is beyond the penalty of his bond, and the rights of all parties interested in the estate are determined by the recovery of the single judgment. It is very proper in such a case as that, that but one action should be permitted to be brought.
The case at bar is not within the express provision of section 2609 for the reason that the letters of administration were not revoked and the successor was appointed. But it is clearly within the reason there laid down, because the facts stated in the complaint in this action are such as would entitle the next of kin (Bischoff v. Engel, supra,) or a creditor (Scharmann v. Schoell, supra) to sue. Either of these persons upon bringing his action would be entitled to recover the full amount of the penalty of the bond. If either person brought the action originally, it would not be just to permit it to be maintained by anybody else: If no leave of the surrogate were required, the action might, in the first instance,- be brought either by each one of the creditors separately or by one or all of. the next of kin, or by the administrator de bonis non, in which case the duty of the court would be, clearly, either to consolidate the actions or to permit one to continue and to stay proceedings upon all the others, But such a course would necessarily result in considerable inconvenience to the surety, who is not to be subjected to any greater inconvenience because he is surety than is necessary to protect the rights of the estate, to which he must respond.
There is every reason, therefore, why any one who seeks to become a plaintiff in this action for the benefit of all the rest, should apply to the court for leave to do so. When that is done, the court would be likely to give leave to the person making the first application, if there were no other person better entitled to sue. Were any subsequent application to be made, the court, being put in possession of the fact that an action had already been begun, would forbid leave, and in that way but one suit would be brought, and that suit would be within the control of the court to a very considerable extent.
These reasons- seem to me to be conclusive as showing that it is *103necessary in a case of this kind that the leave should be given by the surrogate to bring the action. In the cases cited above, where the action was allowed to be maintained, this question was not presented. It was presented, however, in the case of Trust & Deposit Co. of Onondaga, v. Pratt (25 Hun, 23), wherein it was held that the surrogate could not order the bond to be prosecuted, because the executor had not refused or omitted to perform any decree made against him by the surrogate. But that case is of no force as an authority now, for the reason that it is clearly to be inferred from section 2609 of the Code of Civil Procedure that the surrogate has power to give an order to prosecute the bond in cases where he has made no decree. The case is. within the provisions of section 1888 of the Code, which declares that where a public officer is required to give an official bond to the People, and special provision is not made for the prosecution of it by a person who has sustained injury by his default, such a person may apply for leave to prosecute the delinquent’s official bond. This section of the Code clearly applies to this case, and requires that the party seeking to prosecute this bond under the circumstances set out in the complaint, should obtain leave to that end before he brings his action.
Such a requirement is not new in the law. At common law in England the bond of the administrator was given to the Archbishop of Canterbury, and at common law, of course, the action could only be brought in the name of the obligee. Where it became necessary to sue upon the administrator’s bond, the usual course was for the action to be brought by the aggrived person in the name of the obligee, after having obtained permission from the Ecclesiastical Court so to do. (1 Wms. Exrs. 538.) But in a case where an action at law could not be maintained, it was held by the English Court of Chancery that it was in the discretion of the Ecclesiastical Court to determine whether the bond should be brought into the civil court or not. (Parker v. Young, 6 Beav. 261.) The master of the rolls in that case said: “In the absence of all authority on the subject, it does not appear to me that any one can be a specialty creditor under a bond which he does not produce, which is not under his control, which was not executed to him or to his intestate, but was executed to a public officer, and remains subject to the judicial control of the ecclesiastical court, which has discretion to determine *104whether the bend shall be put in suit or not'and upon what terms.” In that case, the administrator de bonis non, claiming to be a specialty creditor against the sureties upon the official bond because of the breach' of its condition, brought a suit in the Court of Chancery against the sureties. He moved in that court that the Ecclesiastical Court where the bond was filed should produce it before the Court of Chancery in order that the action might be maintained, and that the ordinary to whom the bond was given should be considered a trustee for the plaintiff in the suit. The question was directly presented, therefore, whether or not it was proper to bring an action of that kind under just such circumstances as this against the surety upon the official bond without the consent of the court where that bond was filed. The case is authority for the. conclusion which I have reached here. The same rule was substantially held in the case of The Archbishop of Canterbury v. Tubb (3 Bing. [N. C.] 189).
Upon the whole case, it clearly seems to me that such an action should not be maintained unless the court has given leave for that purpose beforehand. And that being so, I am quite clear that the complaint is defective in not containing an allegation that leave was granted ; and, therefore, the judgment should be reversed and the demurrer sustained upon the usual terms.
Judgment affirmed, with costs.