Unquestionably the defendant has received and retained moneys of the plaintiff to which he was not entitled, and I concur in the affirmance of the judgment appealed from for the reason only that I think that the plaintiff’s remedy is not through an action in equity in this court, but by an application to the Surrogate’s Court to vacate or modify the decrees of that court settling the accounts of the defendant as such executor.
I think that a surrogate has the right to entertain such an application in case of fraud or mistake, and, upon proper proofs being made, to vacate, modify or set aside the erroneous decrees. (Code Civ. Proc. § 2481, subd. 6; Matter of Regan, 167 N. Y. 338, 343; Costello v. Costello, 152 App. Div. 288; Matter of Malone, 150 id. 31; Matter of Peck, 131 id. 81; Matter of Flynn, 136 N. Y. 291; Matter of Hodgman, 82 Hun, 419.)