Opinion
January 24, 1908.
David Eilau, for the appellant.
Harvey De Baun, for the respondent.
We reversed the order of the surrogate which determined that his court had no jurisdiction except to entertain contempt proceedings or an application for leave to issue execution, and held that the executor could be compelled to deliver up any of the property which had come into her hands from the estate of which her testator was administrator. The matter was thereupon remitted to the Surrogate's Court for a hearing upon the law and the merits. ( 113 App. Div. 468.) The learned surrogate upon that hearing ordered that the said executor deliver up a certain check dated June 22, 1894, for $606.66, made by the executor's testator as administrator, but denied the application in all other respects, without costs. That order was affirmed. On reargument I think that we should hold that the order of affirmance was a mistake in that its effect was to discharge the executor in the premises, not upon payment of the $606.66 as property received by her as aforesaid, but upon delivery of a mere specific order or draft now fifteen years old for the payment of that sum. If the executor had the money on hand, the applicant was entitled to it forthwith and not to a stale order therefor. His right to money was not affected by the fact that this check was once tendered in open court with a consent to an adjournment until it should be honored and that he refused it. The check was not legal tender. It was but a direction to a bank to pay the payee; the money represented did not thereby become the property of the payee nor was it put beyond the control of the maker of the check nor did the check before presentation work an assignment of the moneys thereby ordered to be paid. ( O'Connor v. Mechanics' Bank, 124 N.Y. 324.)
If this executor came into possession of any interest received by the said administrator upon this $606.66, she could also be compelled to pay it over as assets received. If after receipt of the assets she was chargeable with interest, either actually received by her thereon or which she should have collected but did not, then she might be compelled to pay it over as an asset. This executor cannot administer the assets of an estate of which her testator was administrator. ( Matter of Moehring, 154 N.Y. 423.) If the legatee is entitled to interest in addition to his legacy, whether by the misconduct of the administrator or by operation of law, it constitutes a claim against the estate of this executor's testator and must be enforced as such claim, and the same is true of the individual check of that testator for $62.50.
The order is reversed, with ten dollars costs and disbursements, and the matter remitted to the surrogate in so far as he has jurisdiction.
WOODWARD, HOOKER, GAYNOR and RICH, JJ., concurred.
Order reversed, on reargument, with ten dollars costs and disbursements, and matter remitted to the surrogate in so far as he has jurisdiction.