#### In re STEWART’S ESTATE.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Executors and Administrators—Discovery oe Decedent’s Property.

Where money was placed by decedent in defendant’s hands for a specific purpose, and defendant applied the money as directed, but paid out part of it after decedent’s death, a proceeding to discover property of decedent, alleged tobe withheld by defendant (Code Civ. Proe. §§ 2707-2709), cannot be maintained, as such proceeding is not intended to collect debts.

Appeal from surrogate’s court, Washington county.

Proceeding by Soloman W. Bussell, Jr., as administrator of Bobert Stewart, deceased, for the discovery of assets belonging to decedent’s estate, and alleged to be improperly withheld by one Slocum W. Lake. From a decision and decree in favor of petitioner, said Lake appeals. Beversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Frederick Fraser, for appellant.

Abner Robertson, for respondent.

PUTNAM, J.

This is an appeal from an order made by the surrogate of Washington county in a proceeding instituted by Soloman W. Bussell, Jr., as administrator, etc., of Bobert Stewart, deceased, under the provisions of sections 2707-2709 of the Code of Civil Procedure, to discover property of the said deceased. It appears that, shortly before the death of said Stewart, he delivered to the appeb lant, Slocum W. Lake, $57.92, with directions to use the same in payment of his (Stewart’s) debts, and for suitable clothing and bedding for laying out the remains of said deceased; that Lake paid out all of said sum, as directed, but that $22.92 thereof was so paid after the death of said Stewart. The appellant, in his answer to the petition, alleged that he received said $57.92 from deceased, and had paid out the same pursuant to Ms directions. He did not allege that he was the owner of said $22.92, or entitled to the possession thereof by virtue of a lien thereon, or special property therein (Code Civ. Proc. § 2709), but alleged that he had no property of de*1049ceased in Iiis possession, and did not withhold any such property from the petitioner. The surrogate held that the payment by Lake of said sum of $22.92 after the death of Stewart was unauthorized and wrongful; and as appellant, in his answer, had not claimed to be the owner, or entitled to the possession, thereof, that the surrogate was authorized, under the above-cited provisions of the Code of Civil Procedure, to direct the payment by said Lake of said sum to the administrator. We are unable to agree with the conclusion reached by the learned surrogate. The sections of the Code of Civil Procedure above referred to are intended to authorize a summary mode of discovering and reaching property of a deceased party in the hands of third persons. They are not intended to create a procedure to collect debts. Section 2709 provides that:

“Where it appears to the surrogate * * * that there is reason to suspect that property of the decedent is withheld or concealed by the person cited, he must * * * make a decree reciting the ground of making it, and requiring the person cited to deliver possession of the property to the petitioner. The decree must specify the sum of money or describe the other property.”

The evidence in this case shows that appellant, when this proceeding wras instituted, had no property or money of deceased in his possession. The $22.92 had (probably wrongfully) been paid out as directed by deceased, although after his death. The appellant then •owed the said sum of $22.92 to the administrator, and, in a proper action, could have been made liable therefor. The claim of the administrator for said sum was for a debt of appellant to the estate. If the respondent was entitled to any order under section 2709, supra, it was rather against the parties to whom the money received from deceased had been wrongfully paid by Lake, than against the latter. In Re Cunard (Sup.) 7 N. Y. Supp. 553, it was held that the object of the statute was to provide a summary means of discovery, and, in case of a mere naked possession of decedent’s “money or other personal property,” to compel delivery to the legal representative. In the case of money, it must be a specific sum tortiouslv withheld,—not merely money due and belonging to the deceased, in the sense of an indebtedness. When this proceeding was begun, as above stated, appellant had, pursuant to the direction of the deceased, but after his death, paid out the money in o.uestion. It was not in his hands. In consequence of such payment, he became a debtor of the estate for the amount so paid out. The sum could have been collected of him by action. See In re Nay, 19 N. Y. St. Rep. 259; In re Knittel, 5 Dem. Sur. 371. We think, therefore, that the order of the surrogate should be reversed, with costs, and the proceeding dismissed. All concur.