(concurring):
I concur with Mr. Justice Dowling that the petitioners had no standing in court to require the executor to account without having first affirmatively, established that the executor had knowledge of the petitioners’ claim and that the proper proceeding is that suggested in the opinion of Mr. Justice Dowling. The question as to the right of a creditor to compel an executor to account who has already duly accounted before the Surrogate’s Court, had his accounts settled by judicial decree and the estate distributed under such decree, it seems to me must depend upon the good faith of the executor. The executor or administrator is authorized to advertise for claims against the estate of the deceased and if no claims are presented he is then authorized to apply to the Surrogate’s Court to have his accounts passed and the estate in his hands distributed, and, as I understand the rule, he is then protected from any subsequent accounting by creditors who have not presented their claims unless it is alleged and proved that he acted in had faith. Undoubtedly an executor or administra*274tor who had personal knowledge of the existence of a claim against the estate brought home to him in the course of administration, although the claim had not been presented to him within the time fixed by the statute, would act in bad faith if he accounted for and distributed the estate without making the creditor a party to the accounting or providing for his protection. The executor in this case was a corporation and it could have no knowledge of the existence of the petitioners’ claim except a knowledge acquired by its executive officers, in the discharge of the duties of the corporation as such executor of the deceased. The allegation in the petition is that at the time of filing the said papers purporting to be such an accounting the said German Society of the City of New York knew of the existence of the said judgment and that the same was unpaid at said time. How the corporation acquired notice of the existence of the judgment or that it was unpaid is not stated. Clearly the existence of the judgment would not of itself be sufficient notice of the fact to convict the executor of bad faith, and I am inclined to think that, the mere allegation that the corporation knew of the existence of the judgment was not of itself sufficient to .justify the surrogate in requiring the executor to account. It seems to me that it was necessary to allege and prove that formal notice had been given to the corporation of the existence of the judgment so that it, as executor, had received such notice as bound it to protect the creditor’s rights upon the final accounting. The mere fact that some officer of the corporation had acquired knowledge of the existence of the judgment or that the corporation could be assumed to have had knowledge because of its existence as a public record, would not be such knowledge as would nullify the protection given to the executor in disbursing the estate under the decree of the surrogate, but the knowledge must be such as was brought home to the executor while acting in that capacity to justify a finding of bad faith necessary to sustain the proceeding.
Order reversed, with ten dollars costs and disbursements, and proceeding remitted to Surrogate’s Court for action in accordance with opinion.