The moving papers do not show a demand upon the executor for payment, which has been held to be necessary before a proceeding in contempt can be maintained. McComb v. Weaver, 11 Hun, 271. There is no allegation showing absence or concealment of the debtor, or any other reason why a demand would be impossible or difficult. We see no reason why the general rule requiring a demand should be departed from in this case. The indebtedness in the present case has none of the features of a tort. It is not for money which the executor has received, and for which he fails to account. It is for a debt allowed to be owing from him to the estate. If the debt is due, and the set-off claimed does not exist, it might support a decree against him upon which an execution could issue. After the return of the execution, if defendant had money in his hands which, after an order duly made, he unjustly refused to apply upon the debt, an order punishing him for contempt may be made. That is not in this proceeding. The papers show that appellant is insolvent, and unable to pay the amount decreed. Where the debt is not fiduciary in its origin, does not rest in tort, inability to pay the sum demanded is an answer to the motion to punish for contempt in not paying.
Order reversed, with costs of both courts to appellant.