Pursuant to section 180 of the Surrogate’s Court Act the surrogate dispensed with a guardian’s bond when he issued letters of guardianship herein, and as required by said section the order directing that letters of guardianship issue provided, “ that a bond be dispensed with and that said guardian collect and receive all moneys and property of said ward jointly with Walter A. Fullerton, and that the moneys and other property, *408so far as the same are conveniently capable of deposit, shall be deposited in the name of said guardian subject to the order of the Surrogate, in Capitol Trust Company, Schenectady, New York.”
Appellant’s law firm received a sum of money belonging to the infant and a check therefor drawn by appellant on behalf of said firm was made payable to the guardian who did not deposit it in the bank designated by the surrogate, but drew the cash on it and stole the money.
Later a proceeding was brought in Surrogate’s Court to compel the guardian to account and appellant was made a party to that proceeding. As a result of that proceeding, the surrogate made the decree from which the appeal is taken, by which decree the guardian and said appellant were directed to pay the sum of $2,400 and interest, by paying to the attorneys for the ward the sum of $538.40 and the balance of $2,213.87 to said ward, now of age.
It is now asserted that the surrogate lacked jurisdiction to render the decree herein against the appellant.
When the surrogate granted the order dispensing with the bond upon the issuance of letters of guardianship, and appellant assumed to act under said order he became pro tanto an officer or agency of the court, and there devolved upon him the obligation to discharge the duty imposed upon Mm by the order of the court.
By subdivision 11 of section 20 of the Surrogate’s Court Act the surrogate is granted authority “ To exercise such incidental powers as are necessary to carry into effect the powers expressly conferred.”
The rule is universal that if the power is conferred to render the judgment or enter the decree, it also includes the power to issue proper process to enforce such judgment or decree. (People ex rel. Republican & J. Co. v. Lazansky, 208 N. Y. 435, 438. See, also, Matter of Dissosway, 91 N. Y. 235.)
Here the surrogate has made a lawful order in substance directing the appellant to receive the money and deposit it in the name of the guardian in a specified trust company. That order has not been complied with. Under the incidental powers of the Surrogate’s Court I tMnk it had authority to compel obedience to tMs order.
The appellant having assumed the obligation to comply with the order, and it appearing that it has not been complied with, prima fade, appellant is obligated to do what he was required to do. Of course, he should have the right to establish, if he can, legal reason for non-compliance. The appellant says that he has not had such an opportunity; that in the proceeding before the surrogate he interposed objection to the jurisdiction, and that it was understood that further proceedings were to be held in abeyance pending the *409decision by the surrogate upon the question of jurisdiction; that thereupon the surrogate proceeded to determine the question and that thereafter appellant had no opportunity to introduce evidence in support of his defense. The respondent William Albanese disputes this, but we may assume that the appellant did understand that he was to have an opportunity to introduce evidence.
Under the circumstances, in the exercise of the discretion vested in this court, the decree, in so far as appealed from, should be reversed upon the facts and a new trial granted, with costs to the appellant to abide the event.
Bliss, J., concurs.
Decree reversed on the law in accordance with opinion, and petition dismissed as to the appellant Fullerton.