#### Henry T. McCoun, Jr., App’lt, *v.*William Sperb, Jr., Impleaded, etc., Resp’t.

*(Supreme Court, General Term, Second Department,*

*Filed June 28, 1889.)*

Principal and surety— *When*surety can call upon principal por INDEMNITY.

This is in form a suit of a surety against a principal for re-imbursement. The defendant and one Beach were the administrators of one Dunspaugh, and the plaintiff and one Mitchell were the sureties on their bond. Subsequently the defendant commenced proceedings to compel Beach to account, with the result that a decree was made charging him with the amount in his hands, and the surrogate assigned the administrator’s bond to defendant for suit. The action was successful, and the judgment was collected from the plaintiff herein. *Held,*that plaintiff can call upon defendant for indemnity, and that he is entitled to judgment.

Appeal taken by the plaintiff from a judgment entered on the decision of Justice Barnard, dismissing the complaint, with costs.

The facts are that the respondent and one Beach were administrators of the goods, etc., of one Dunspaugh, and the appellant and one Mitchell were the sureties on their bond.

In the meantime Beach had proceeded to take charge of the estate, consisting of an hotel and other property, and converted all the assets' into money. In April, 1885, Beach filed his inventory, from which it appeared, among other things, that he had deposited the money in a trust company to his own credit in trust for himself and the respondent as administrators. In December, 1885, the respondent commenced proceedings to compel Beach to account before the surrogate of Queens county, with the result that a decree was obtained charging him with the amount in his hands, and costs, and he was directed to pay the same to the respondent. He failed to comply with the decree; executions were issued against his property and returned unsatisfied, and the surrogate, in June, 1886, made an order assigning the bond to the respondent to be prosecuted. Thereafter the respondent commenced an action on his official bond against the appellant and Mitchell, the sureties on the bond, to recover the amounts above mentioned. The case went to the court of appeals and is reported in 110 N. Y., 605; 18 N. Y. State Bep., 616.

The appellant paid the judgments in that action, and then commenced this action against the respondent and Beach to recover the amount so paid.

*Arnoux, Bitch <& Woodford,*for resp’t; *Arnold & Greene,'*for app’lt.

Pratt, J.

The case of *Nanz*v. *Oakley*(37 Hun, 496), is a distinct authority for the plaintiff in this action. The *733court of appeals in *Sperb*v. *McCoun*(110 N. Y. 605; 18 N. Y. State Rep., 616), call attention to the fact that *Nanz*v. *Oakley*was, in effect, prosecuted for the individual benefit of the administrator, who was the only heir at law arid next of kin, and appear to approve the decision upon that ground. They certainly express no disapproval of the' result arrived at by the supreme court; and we can well believe, as is stated in respondent’s points, that on the publication of the decision of the court of appeals in *Sperb*v. *McCoun,*Nanz abandoned his appeal.

The authorities cited from other states seem to concur to the effect that the surety in an administration bond can call upon either principal for indemnity. And in 'view of the implied approval by the court of appeals of *Nanz*v. *Oakley,*as distinguished and limited by them, we are of opinion that we must be bound by its authority. This leads to a reversal of the judgment appealed from.

We clearly see that, in effect, this renders an administrator liable for the torts of his co-administrator. But we do not see how this result can be avoided unless the legislature intervenes, as has been done in Massachusetts, and permits separate bonds to be filed by the administrators.

Judgment reversed, new trial ordered, costs to abide event.

Dtkman-, J. concurs; Barnard, P. J., not sitting.