#### Matilda Mary Eberle, Respondent, *v.*John H. Schilling et al., Appellants.

(Supreme Court, Appellate Term,

July, 1900.)

Action against sureties on guardian’s bond — They need not be cited to his compulsory accounting — Admissibility of decree fixing his liability..

Sureties of a guardian need not be cited to a compulsory accounting instituted against him by his ward but, although not cited, are bound by a decree made therein fixing the amount of his liability.

Where he does not pay the debt his ward may prove the decree in an action subsequently brought by her to recover the debt of the sureties, and this because they are privy to proceedings against him and in the absence of fraud are concluded where he is concluded.

Eberle v. Bryant, 31 Misc. Rep. 814, affirmed.

*196Appeal from a determination of the General Term of the City Court of the city of New York, affirming a judgment of the Trial Term rendered by a jury in favor of the plaintiff.

Action begun November 12, 1895, on a bond, given December 8, 1886, by John H. Schilling, as guardian of the property of the plaintiff, then a minor, and upon which bond the defendants Bryant and Van Riper were sureties. Schilling lost the fund, which consisted of $500. The sureties replaced it and deposited it, to the joint credit of Schilling and themselves, in a trust company which became insolvent in 1891, and the fund was wholly lost. Upon the petition of the ward (the plaintiff herein) Schilling accounted and by a decree of the proper surrogate, made September 26, 1895, to which decree the sureties were not parties, was found indebted to the ward in $752. Execution was issued, returned unsatisfied and thereupon the present action was begun. Although named in the summons, Schilling was not served with it and died insolvent in New Jersey, about February 23, 1896. The defendant sureties, by their answer, denied liability under the circumstances and also alleged that the decree of September 26, 1895, was fraudulent.

J. Wilson Bryant, for appellants.

Powell & Cady, for respondent.

*Per Curiam.*

The case contains no certificate that it includes all the evidence, and it is apparent upon inspection that certain exhibits read on the trial are omitted. Nor did the defendants move to set aside the verdict and for a new trial, or except to the direction of a verdict in favor of the plaintiff, or ask to go to the jury upon any question of fact. We are, therefore, confined to an examination of the exceptions taken in the course of the trial.

The only exceptions that, require consideration are those taken to the admission of the surrogate’s decree of September 26, 1895, fixing the amount due to the plaintiff from John H. Schilling, the guardian, for whom the defendants Bryant and Van Riper were sureties. It is objected that this decree was not conclusive upon them because they were not cited or made parties to the proceedings. The accounting was an involuntary one, founded upon the petition of the ward. Assuming that the decree was free from fraud, there can he no doubt that it hound the sureties, because, by *197their contract of suretyship, they are privy to proceedings against their principal, and when he is concluded, they, in the absence of fraud or collusion, are concluded also. Casoni v. Jerome, 58 N. Y. 315; Douglass v. Ferris, 138 id. 192. It is only in cases in which the accounting is founded upon the guardian’s petition that it is necessary to cite his sureties. Code Civ. Pro., § 2849. There is nothing in the case to suggest fraud or collusion in the procurement of the decree. The facts upon which the defendants Bryant and Van Riper sought to escape responsibility were before the Appellate Division in Otto v. Van Riper, 31 App. Div. 278, and their liability was determined. That decision is conclusive of the question, so far as this court is concerned. There was nothing in the several orders made by the surrogate after the entry of the decree which affected its binding force upon the defendants. They were permitted to come in and file objections to the guardian’s account, but such permission did not modify or vacate the decree.

The objections they did file, even if true, did not tend to reduce in any way the amount to be found due from the guardian to the plaintiff, but merely suggested reasons why they, the bondsmen, should not be required to make good the amount. Bo such question was before the surrogate on the accounting. The sole issue before him was as to the amount which the guardian owed to his ward. The question as to the liability of the sureties for the amount so found due, could be determined only in an action upon the bond. Hence the order of March 5, 1896, referred to in the case, but not printed, which apparently undertook to determine the question of the sureties’ liability, would have been ineffectual to protect them, even if it had not subsequently been vacated by the surrogate by the order of April 6, 1896; Our conclusion is that the decree of September 26, 1895, stating the account of John H. Schilling the guardian, and determining the amount due from him to the plaintiff was conclusive upon the defendants Bryant and Van Biper, his sureties, as to the amount due to the plaintiff, and that the reasons urged upon us why they should be relieved of liability are invalid.

The judgment must, therefore, be affirmed, with costs.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment affirmed, with costs.