Appeal from an interlocutory judgment overruling a demurrer to the complaint.
The action is on a bond, conditioned tliat the defendant Giles S.. Brisbin should faithfully discharge the trust reposed in him as executor arid trustee under the will of Catharine S. Bailey, deceased. The complaint contains two counts. The demurrer is to the entire-pleading on the ground that it does not state facts sufficient to constitute a cause of action. If therefore either be good the demurrer was properly overruled. The point of the demurrer is this : that the liability of the sureties (the parties demurring) is not shown in and by the complaint, inasmuch as it contains no averment that the default of the executor had been established against him by the order or decree of the Surrogate’s Court, and we are cited to section 2607 of the Code of Civil Procedure, and to Hood v. Hood (85 N. Y., 561) in support of this objection to the pleading. The answer of the plaintiffs counsel to this objection is that the first count in the complaint charges a breach of the bond in this; that the executor had been guilty of gross neglect and bad faith in omitting to sell the real estate of the deceased and to invest the proceeds-thereof as directed and required in and by the will, and that over such breach and as to such ground of action the Surrogate’s Court had no jurisdiction. Undoubtedly, the counsel is right in lii-s position that the surrogate had no jurisdiction over this subject. If so, the plaintiff is pursuing the only remedy available, or that can be made available to her. The case of Hood v. Hood does not determine the point against the plaintiff. There the action was-brought to compel an aaooimting by the executrix and executor, and to charge the executor with funds of the estate alleged to-have been misapplied and converted by him to his own use, and to compel his sureties to pay the sum or amount with which he should properly be charged. That was a matter over which the surrogate had jurisdiction. Not so here. This suit is-for damages, not to recover a balance to be found due on an accounting. How much may be recovered, or whether the recovery can be more than nominal, is not a question here before us. That will become matter of proof on the trial. Here it was impossible to obtain a judgment or decree in the Surrogate’s Court for *581the breach of the bond counted on. In such case an action may be maintained for such breach by the injured party without attempting an impossibility. (Williams v. Kiernan, 25 Hun, 355; Haines v. Meyer, Id., 414, and cases there cited.) The doctrine of these cases is not impugned by the decision in Hood v. Hood. That case holds this, and this only, that where the remedies required to be pursued may be pursued, they must be resorted to. But the rule is there recognized that where special circumstances exist showing a necessity for the interposition of the court in order to the attainment of a right, and those circumstances are stated, the court will not hold that which is impossible to be a bar to an action for relief.
It is further urged, by the appellant’s counsel, that section 814 of the Code of Civil Procedure saves the pleading from the objection urged to it. It is insisted that no provision is specifically made by law for the prosecution of the bond counted on, because of the breach here alleged. Believing that the appellant’s case may well stand on the point above considered, we need not here examine this question.
We are of opinion that the interlocutory judgment appealed from should be affirmed.
Interlocutory judgment affirmed, with costs, but with liberty to answer over on the usual terms.
Landon, J., concurred.