#### John J. Cunningham, as Administrator de Bonis Non, etc., of Erwin L. Coolidge, Deceased, Respondent, *v.*The City of New York, Appellant.

First Department,

June 12, 1914.

Executors and administrators — administrator de bonis non, authority to accept payments on and satisfy judgments — payment into court by defendant for security of prior attorneys—right of defendant to be credited with certain amounts under section 1903 of the Code of Civil Procedure upon reinstatement of judgments against it.

Where letters of administration granted to an administrator *de bonis non*are limited to the prosecution of an action without power to collect or compromise, payment on judgments to the attorney of such administrator are unauthorized, and satisfaction pieces executed by him will he vacated and the judgments reinstated.

But where the defendant upon the substitution of attorneys has, pursuant to an order of the court, paid a certain amount of the recovery to the city chamberlain in order to secure the claim of the attorneys of record, it is discharged from liability to such extent.

The defendant is also entitled to be credited with such amounts as upon a proper application shall be allowed by the surrogate under the provisions of section 1903 of the Code of Civil Procedure. The application for such allowance may be made by any person interested, including, under the circumstances of the present case, the defendant.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of July, 1913, upon the decision of the court after a trial at the New York Special Term. The judgment vacated the satisfaction of three other judgments and reinstated them.

This action was brought to vacate certain satisfactions of judgment entered in favor of William J. Parks, as adminis*852trator *do bonis non*of Erwin L. Coolidge, deceased, against the city of New York, upon the ground that the satisfaction pieces were executed without authority. The answer denies some of the allegations of the complaint and sets up two affirmative defenses namely, due payment of the amount of the judgments and laches.

Erwin L. Coolidge was killed in an accident on a public highway on May 27, 1902. He died intestate and left him surviving a widow and four infant children. The widow obtained letters of administration and through Powers & Hoff, her attorneys, started an action against the city of New York to recover damages for the death of said Erwin L. Coolidge. A judgment was recovered in favor of the plaintiff against the city, from which an appeal was taken to the Appellate Division, First Department. Pending the decision of the said appeal William B. Waring was substituted as attorney for the plaintiff. Upon the appeal the judgment was reversed and a new trial granted.*

Thereafter the plaintiff, Mary E. Coolidge, died and William J. Parks was appointed administrator *de bonis non,*his letters being limited to prosecuting the action and without power to collect or compromise. The action was revived by said William J. Parks, as administrator, and resulted in a judgment in favor of the plaintiff and against the city in the sum of $18,653.69. The city appealed to the Appellate Division, upon which appeal the judgment was affirmed and a further judgment of $117.55 costs was entered. The city again appealed to the Court of Appeals, which court again affirmed the judgment and a further judgment of $139.90 costs was entered.†

When William B. Waring was substituted as attorney for the plaintiff in place of Powers & Hoff, the court made an order requiring payment to the city chamberlain of the city of New York of one-third of any recovery in the action, in order to secure the claim for services of said Powers & Hoff.

Pursuant to this order and on March 6, 1907, the defendant paid one-third of the total recovery, including interest, namely, the sum of $6,904.10, to the chamberlain of the city of New *853York. The other two-thirds, namely, $13,808.21, was paid to William B. Waring, the attorney for the plaintiff, who executed satisfaction pieces of the judgments. The satisfaction pieces were filed and the judgments canceled of record.

The letters of administration of William J. Parks were revoked on December 14, 1910. Thereupon John J. Cunningham, the plaintiff in this action, was appointed administrator *de bonis non oí*Erwin L. Coolidge, in place of the said William J. Parks. The letters of administration of the plaintiff in this action give him power to prosecute only, 'without power to collect or compromise.

The present action was then commenced by the plaintiff and resulted in the judgment appealed from.

Out of the moneys received by him Waring retained $7,500 for his own services, paid $1,500 to counsel for arguing the appeals, and $2,500 to Parks, then administrator, to reimburse him for certain expenditures.

*Charles J. Nehrbas,*for the appellant.

*Alfred L. Marilley,*for the respondent.

*

See *Coolidge*v. *City of New York*(99 App. Div. 175).—[Rep.

†

See Parks v. *City of New York*(111 App. Div. 836; 187 N. Y. 555).— [Rep.

Scott, J.:

It is quite clear that the administrator *de bonis non*of the goods, chattels and effects of Erwin L. Coolidge, deceased, had no authority to collect and receive the amounts of the judgments against the defendant, until thereto authorized by the surrogate. (Code Civ. Proc. § 2664.) What he could not do himself his attorney could not do as his agent. The payment to the attorney Waring was, therefore, unauthorized and his attempted satisfaction of the judgments ineffective. These facts justify the judgment appealed from whereby the parties Will he restored to the position they held before the unauthorized satisfaction pieces were executed and filed.

It does not follow, however, that defendant should he required to pay the said judgments in full. It is entitled to he credited upon said judgments with the amount paid into court under the order of October 14, 1904. Assuming that no payment could lawfully be made out of the recovery for the expenses of the action, except after the surrogate had determined the *854amount to be paid, and that in the particular action the surro. gate had exclusive authority to determine such amount (Code Civ. Proc. § 1903), still the Supreme Court in which the action was pending and to which application necessarily must be made for a substitution of attorneys, had authority to provide protection for the claim of the original attorneys, even if it had not authority to determine the amount due to them. So much of the order of October 14, 1904, which required a certain sum to be paid into court to protect the claims and Hens of the original attorneys was, therefore, valid, and the payment of the specified sum into court discharged defendant from all liability to the extent of the money so paid in. (Code Civ. Proc. § 743.) Whether the chamberlain was justified in paying over any part of said sum to the attorneys for whose protection it was deposited, if indeed he did so pay it (as to which the decision is silent), without an order of the surrogate fixing the amount to be paid is a question which does not now arise. It can be determined when the chamberlain to whom the money was paid is called upon to refund it. He is not a party to the action and no judgment respecting his liability can be entered.

The defendant is also entitled to be credited with such amounts as upon a proper application shall be allowed by the surrogate under the provisions of section 1903 of the Code of Civil Procedure. The application for such allowance may be made by any person interested including, under the circumstances of the present case, the defendant.

The judgment appealed from will, therefore, be modified in accordance with the views hereinbefore expressed, and as so modified affirmed, without costs to either party.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment modified as indicated in opinion, and as modified affirmed, without costs. Order to be settled on notice.