— The complaint alleges that on or about September 17, 1871, Catherine S. Bailey died, leaving certain real estate in the village of Waterford, Saratoga county, particularly described, having on the 23d day of February, 1866, made her last will, which contained the following clause, viz.:
“ Tenth. I direct and empower my executors, hereinafter named, to sell and convey all the real estate of which I shall die seized, for the best price that can be obtained for the same, and at such time or times as shall in their judgment be for the best interest of all concerned, and the proceeds arising
Said complaint further alleges that by said will defendant Giles S. Brisbin, William S. Haight and Isaac 0. Ormsby were appointed executors, but neither said Ormsby or said Haight accepted such trust, but each renounced the same. The plaintiff, Fannie B. Haight, and Matilda S. Brisbin, wife of said Giles S. Brisbin, were the two daughters mentioned in the said will as aforesaid. That said will was duly proven and admitted to probate by the surrogate of Saratoga county, November 6, 1871, and said Giles duly accepted said trust and qualified as such executor under said will. That the said real estate above mentioned is mainly valuable for building purposes, and the same is not of much value for renting; and at no time since the death of said Catherine would it pay a net rent of three per cent upo.n its market value, or the price which it could be sold for; that said price and value has been decreasing ever since the death of said Catherine; of all which facts the said Giles had full knowledge. That said Giles neglected to sell said real estate as requested by the said plaintiff, and on the 4th day of November, 1882, the surrogate of Saratoga county upon her petition duly made and entered an order and decree, whereby it was decreed and determined that the circumstances of said Giles S. Brisbin were such that they did not afford adequate security to the persons interested,
That on September 8, 1884, an order was duly made by this court granting leave to plaintiff to bring and maintain an action in her own name for the breach of the condition of the said bond.
For a second cause of action plaintiff alleges that on or about July, 1883, plaintiff commenced an action in this court against the said Giles, as executor and trustee under said will, for neglecting to faithfully execute and discharge the trust reposed in him under said will; that the action was tried at a special term without a jury, and the defendants James C. Brishin and Morgan B. Moe were requested to attend the trial thereof, and were notified that it would be insisted that said defendants would be bound and concluded by the judgment therein. That said defendants, such sureties, did not appear in such action That afterwards, on the 'ith day of August, 1884, a judgment was duly recovered in said action by the
The defendants "James O. Brisbin and Morgan B. Moe demur to the complaint on the ground that it does not state facts to constitute a cause of action against them or either of them. The form of an administrator’s bond is provided by section 2667, Code of Civil Procedure. An executor’s bond should be in the same form (McClellan's Surrogates Ct., 344.) The bond set forth in the complaint is that of an executor and testamentary trustee; is in the same form as an executor’s bond and was authorized by law (Code Civ. Pro., seos. 2815, 2816). Plaintiff was one of the parties for the benefit of whom the bond was taken. After leave obtained from the court to prosecute, she could maintain an action in her own name thereon (Code Civ. Pro., seo. 814).
The contention of the defendants upon the argument was that by the terms of the bond and the provisions of law an action cannot be maintained until the defendant Giles has been required to account before the surrogate, and a decree made in that court requiring him to pay a certain amount to plaintiff as executor and trustee, and execution issued against his property returned unsatisfied. Many cases are cited where actions have been brought against the sureties of administrators, executors and general and special guardians, under the law as it was before the Code of Civil Procedure went into effect, in which this contention was sustained. Brown agt. Bulde (3 Lans., 283), and Hood et al. agt. Hood et al. (85
It is a general principle frequently decided by the courts, that contested claims cannot be litigated in surrogate’s court. It has been held in some cases that where it was impossible to obtain a decree for breach of the condition of an executor’s or trustee’s bond, an action could be maintained for such breach without such decree, by an injured party. The defendants who are sureties are concluded by the judgment against their principal (Douglass agt. Howland, 24 Wend., 35; Jackson agt. Griswold, 4 Hill., 522; Annett agt. Terry, 35 N. Y., 256; Baggett agt. Boulger, 2 Duer, 160 ; Casoni agt. Gerome, 58 N. Y., 315; Gerauld agt. Wilson, 16 Hun, 530; Hood agt. Hood, 85 N. Y., 578). The liability of the defendant Q-iles S. Brisbin has been established by the judgment of the court, upon which an execution has been returned unsatisfied. The sureties have had the benefit of substantially the same proceedings necessary to charge them for the failure of their principal to perform a decree of the surrogate (See opinion in Hood agt. Hood, 85 N. Y., 575 and cases cited). The following cases are cited as showing special circumstances which authorize an action against sureties on bonds of an administrator, executor, trustee or guardian, without any action or proceeding against the principal (Carow agt. Mowatt [2d ed.], chap. 57, 62; Williams agt. Kiernam., 25 Hun, 355 ; Haines agt. Mayer, 25 id., 414). Defendants have demurred to the whole complaint. If either count of the complaint is good, plaintiff should have judgment.
Judgment for plaintiff upon the demurrer.