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Application to the Surrogate by David S. Mills.

all events, to give twelve months before proceedings should, as a general thing, be taken to compel payment against the estate of a deceased person.

It is six months after the issuing of letters testamentary, before an order can be obtained to advertise for claims against the estate.

It is then six months before the notice expires.

If a party die before execution, and after judgment against him, no execution can issue against him until one year after his death; and so, under the law of 1851, application can only be made, to issue execution against the real estate of the deceased on which the judgment is a lien, until one year after the death of the judgment debtor. Is there anything in the nature and circumstances of this case that should call upon the surrogate to exercise the power and discretion which is given him by the 18th section, to decree payment of the claim, or a proportional part thereof? It is said the will gives the power to the executors to raise money by mortgage, and pay off this claim. I have no power to compel them so to do. I might decree that they pay the whole, or a proportional part of the debt, and so compel them to sell the personal property, or to raise money by mortgage. Here, again, the statute authorizes sales of personal property out of the city of New York, on a credit not exceeding one year, with approved security. It might be deemed for the interest of the estate to exercise this power of selling on a credit, and then it would be impossible to collect the proceeds so as to pay upon the application. Under the circumstances of this case, considering the small amount of cash and of assets that are immediately convertible in the inventory; the intent of the testator to preserve the business to his sons; and the condition of the appeal and litigation, in reference to the judgment in the court of law where the same was obtained, I do not think that the exercise of a sound discretion would require me to decree payment of said judgment, or a proportional part thereof, at this time. But as the decision of the question on appeal may place this matter in a situation to call for the exercise of such discretion, I shall deny the

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present application without costs, and with leave to renew the same at a subsequent time upon application, showing additional facts to authorize the same, and upon notice of six days to the executors and executrix.

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David S. Mills agt. John B. Thursky and others, executors

of John Thursby, deceased.

An application to order an undertaking on appeal to be filed nunc pro tunc, is

in the discretion of the court. And the court has a discretion to order a stay of proceedings on appeal from

the special to the general term, where no proper undertaking has been filed and served, even if it were necessary (under $ 340,) that a copy of the under

taking be served with the notice of the appeal. (See Code, $$ 275, 327.) Where it appears that an appeal from the special to the general term is taken in

good faith, and that the appeal does not, upon its merits, appear to be frivolous, although no proper undertaking may have been filed and served with the notice of appeal, the court will allow the undertaking to be filed, and a copy of it served as of the day when the notice was served, with liberty to the respondent to except to the sureties, with a stay of proceedings until the appeal be decided.

New-York Special Term, May 12, 1854.

This was a motion to amend an appeal from a judgment in a proceeding against the executors of a deceased judgment debtor, who was summoned under sections 375 and 376 of the Code, providing that his “ personal representatives” be “summoned at any time within one year after their appointment,” " to show cause why they should not be bound by the judgment in the same manner as if they had been originally summoned.”

Vol. XI.

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N. DANE ELLINGWOOD, for the appellants, insisted the mistake of appellants was accidental, and ought to be amended.

ALBERT MATHEws, for the respondent, contended the appeal was frivolous, and not taken in good faith ; and relied on the above named sections of the Code, as amended, to sustain the regularity of the judgments.

MITCHELL, Justice.—Mills recovered a judgment in this court against John Thursby, the testator, for $19,455.78-100th, on 13th September, 1851.

The testator died 23d April, 1853, and the defendants were appointed his executors on the 15th of June following. On the 12th of the following November, the plaintiff issued a summons against these defendants, requiring them to show cause at a special term of this court, in twenty days after service of the summons, why that judgment (describing it as obtained on the 13th September, 1851, for $19,455.78,) should not be enforced against the estate of said John Thursby, in the hands of the executors; or why further relief should not be granted.

No complaint was filed or served, and no summons as on a new action; but the summons above described was accompanied by the affidavit of the plaintiff's attorney, who had subscribed the summons, showing the amount and date of the judgment, the death of the testator, and the appointment of the executors, and that no part of the judgment was paid.

The defendants, by way of answer, denied that such judgment was rendered. The matter was heard at special term, on 9th March, 1854, and an order made reciting the true amount of the judgment and its date, and the other facts above stated; and on that order judgment was entered on 17th March, 1854, stating the principal and interest due on the first judgment, and the costs on this proceeding, and adjudging that the plaintiffs recover of the defendants, as executors of the will of John Thursby, deceased, the said amount so ordered to be paid and interest and costs, in the whole amounting to $23,024.94; and that the property and estate of John Thursby be applied to the

Mills agt. Thursby and others, ex’rs, &c.

payment thereof; and that the defendants pay the same to the plaintiff, and that he have execution therefor.

From this judgment, the defendants appealed in due time to the general term, and gave an undertaking with four sureties, two of whom justified in $14,000 each, and two in $10,000 each.

This was held to be irregular, and a stay refused on that account. A new undertaking was then given by two sureties, who justified in $10,049.89-100th each. This was objected to as not being double of the judgment, and of the $250 for the costs on appeal. After that, on the 11th of April last, a third undertaking was executed by two sureties who justified in $17,000, and a copy was served with notice on the plaintiff's attorney. The defendants now move for a stay of proceedings until the appeal be decided, and that the last undertaking be filed nunc pro tunc, as of the day when the notice of appeal was served, with liberty to the plaintiff to except to the same.

The defendants have, evidently, honestly intended to give the requisite security, and in due form; they have twice slipped in a matter of practice—but the undertaking was each time in due form, and the justification alone imperfect in form.

The Code has an express provision, that when a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit, through mistake, to do any other act necessary to perfect the appeal, or to stay proceedings; the court may permit an amendment on such terms as may be just. (Code, $$ 327, 275.)

This applies directly to this case, if the appeal was taken in good faith. Section 348 also allows a stay of proceedings on an appeal from the special to the general term, on such terms, as to security or otherwise, as may be just. The court, therefore, has a discretion to order a stay, even if it were necessary (under 9 340) that the copy of the undertaking be served with the notice of appeal. This application to order the undertaking to be filed nunc pro tunc, is to the discretion of the court.

The plaintiff, therefore, has insisted that there are palpably

Mills agt. Thursby and others, ex’rs, &c.

no merits in this appeal. This requires the judgment to be looked into. The judgment appealed from professes to be founded on sections 376 to 381 of the Code. Those sections apply only to the heirs, devisees or legatees of the judgment debtor, or his terre tenants—these defendants are neither heirs, devisees, legatees, or terre tenants—they are simply executors. The proceedings under those sections cannot be commenced until after the expiration of three years from the granting of letters testamentary; this was commenced within five months after that time.

If this was intended as a new action, the summons should have required the defendants to answer the complaint, and serve a copy of the answer, and should have stated that, in default of an answer, the plaintiff would take judgment for a certain amount, or apply for the relief demanded in the complaint. (Code, $$ 128, 129, 107, 108.)

The summons served did not in any respect comply with this. It was to show cause as on a motion, and did not refer to any complaint, and no complaint was ever filed, or ever formed any part of the judgment.

If this proceeding were intended as a substitute for a scire facias, the relief is to be sought by a new action, (Code, $ 428,) and not under $ 376, &c.

The judgment against executors at common law, when they were not guilty of false pleading, was for the amount of the debt “to be levied on the goods and chattels of the testator in the hands of the executors, unadministered ;” it now is probably never to be entered against the defendants personally, except for costs under certain circumstances. This judgment is, that “the plaintiff recover of the defendants, as executors,” the whole of the original judgment, interest and costs; this is a distinct part of the judgment, and may be considered as binding them personally-and it may be that the additional clause, which is cumulative, and not restrictive in its language, affords an additional remedy, and is no limitation on the first part of the judgment, viz., "and that the property and estate of John Thursby be applied to the payment thereof;" especially as the next

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