#### Charles E. Fassbender, as Administrator, etc., of Adolph Lauck, Deceased, Plaintiff, *v.*The American Surety Company of New York, Defendant.

(Supreme Court, Nassau Special Term,

January, 1910.)

Executors and administrators — Rights and liabilities of sureties and actions on bonds — Action by successor of removed representative — Conditions precedent.

Surrogates’ Courts — Procedure and review — Orders • and decrees — Operative as bar or as conclusive evidence — Removal of representatives — For failure to account — Presumption of misappropriation of funds.

The failure of an administrator to account, when required so to do by the Surrogate’s Court having jurisdiction, raises a presumption that he has misappropriated the assets that have corns into his hands.

Where letters of administration have been revoked for the failure of the administrator to account when required, a judicial determination of his liability by a decree of the Surrogate’s Court is not a condition, precedent to an action by his successor upon his official bond.

*7Action by the successor of au administrator against the surety upon the official bond of his predecessor, whose letters had been revoked by a decree of the Surrogate’s Court. At the close of plaintiff’s case the defendant did not introduce any evidence but moved to dismiss the complaint upon the facts disclosed by plaintiff’s evidence.

Maxson & Jones, for plaintiff.

Henry C. Willcox (Clarence Edwards, of counsel), for defendant.

Scudder, J.

The essential facts established by plaintiff’s evidence are as follows: One John A. Lauck was appointed the administrator of the estate of his father, Adolph Lauck, deceased, and upon receiving letters of administration filed the usual administrator’s bond, executed by himself as principal and the defendant herein as surety.

By a decree of the Surrogate’s Court said Lauck, as administrator, was directed to file his account; he neglected to do so, and his letters were revoked. Thereafter the plaintiff in this action was appointed administrator of the estate of said Adolph Lauck, deceased; and it is also sufficiently shown that John A. Lauck, while administrator, received the sum of $612.50 belonging to the estate of the decedent which has not been turned over to or received by his successor, the plaintiff.

Though the bond of an administrator in form runs to the people, in legal effect it runs to those to whom the right of action thereon is given by statute. The Code of Civil Procedure specially provides for an action on the bond of a removed administrator by his successor, “ in which he may recover any money or the full value of any other property received by the principal in the bond and not duly administered by him.” § 2608.

The important question in the present case is whether or not the plaintiff has established that the money of the estate received by the removed administrator was “not duly administered by him.” It was the duty of the removed admin*8istrator, when directed by the Surrogate’s Court, to file a verified account of all receipts and disbursements accompanied by proper vouchers for all payments made by him. He did not account, and he is therefore chargeable with the money he is shown to have received and which did not come into the possession of the plaintiff, his successor. A presumption of a misappropriation by him of such money arises from his failure to account. Upon proof of the removed administrator’s failure to account, plaintiff established, *prima facie,*such misappropriation; and it was upon the defendant surety to plead and prove that its principal duly applied and administered the money of the estate received by him.

Section 2608 of the Code of Civil Procedure, by providing that the successor administrator may recover money or the value of property received and not duly administered, would seem to expressly authorize the determination of these facts in the action which it permits the successor administrator to bring on the bond of his predecessor.

In support of his contention that a judicial determination of the liability of the principal by a decree of the Surrogate’s Court was a prerequisite to plaintiff’s action, defendant’s counsel cites Haight v. Brisbin, 100 N. Y. 219; Perkins v. Stimmel, 114 id. 359; Rouse v. Payne, 120 App. Div. 667; Otto v. Van Riper, 164 N. Y. 536.

These cases do not apply; in none of them was the plaintiff the successor of a removed executor, administrator, or guardian. The remedy given to such successor on the bond of his removed predecessor by section 2608 is wholly distinct from and independent of the remedies conferred upon other persons on the bonds of executors, administrators, or guardians by other sections of the Code of Civil Procedure. Hood v. Hayward, 124 N. Y. 1.

It was proper for plaintiff to sue the surety without join ing his principal; the bond was joint and several.

Judgment for plaintiff for $612.50,