Opinion
June 10, 1940.
Mottur Mottur [ J. Preston Mottur of counsel], for the petitioner.
Leon P. Falk, for the claimant.
Milton A. Fisher, for the creditor.
John J. Bennett, Jr., Attorney-General [ Maurice H. Matzkin, Assistant Attorney-General, of counsel], amicus curiae.
The application for reargument is granted and on such reargument my original decision ( Matter of Fontheim, 171 Misc. 24) is adhered to. The events which have occurred since the making of the prior decision in no way aid the surrogate in making a final determination of this matter. The administratrix has failed to have the compensation award fixed or estimated as provided in section 29 Work. Comp. of the Workmen's Compensation Law. Until this is done, it will be extremely difficult, if not impossible, for the surrogate to find what part, if any, of the fund is exempt from the claims of creditors or subject to the payment of such claims. In addition, two new creditors have appeared since the making of the last decision and apparently the administratrix, in her capacity as widow, is now making a claim for the entire proceeds of the action. Such a claim affects the rights of the two infant distributees of the decedent. Under the circumstances, all questions as to the proper distribution of the fund now in the hands of the administratrix will be determined in an accounting proceeding which is directed to be begun within thirty days.
Submit order on notice in accordance with this and my prior decision in this matter.