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been complied with; in the other there is a binding contract notwithstanding the happening of the contingency relied upon to defeat it."

What the agreement between the plaintiff and defendant actually was must be gathered alone from the policies, receipts, and notes, and the testimony of plaintiff, which is, of course, not disputed, except as it is to some extent self-contradictory. It was for the court therefore to pass upon the interpretation of the contract thus established. No apparent question of fact was presented requiring determination by the jury. The court's disposition of the case as one presenting only a question of construction was proper, and his direction of a verdict for plaintiff was warranted.

Other exceptions to the rulings of the court on the trial present no error. One especially relied on is to the court's refusal to permit defendant to give the conversation between Marvin and himself at the time the renewal notes were given. This testimony might have been properly admissible under the circumstances, had not defendant's counsel by his statement, when the testimony was offered, that he did not propose to show thereby that there was any new agreement, clearly admitted that the evidence was not material to the issue; the renewal notes being, of course, subject to all the defenses which might have been available against the original.

Another exception to the court's ruling in striking out testimony as to conversations defendant had with Larabee and Marvin is not available for the reason that it does not appear what particular portions of that testimony were in fact removed from the record, and the limitation of the court in directing what should be stricken out to those declarations only, which the evidence does not show were authorized by Smith, or called to his attention, was proper. What portion of the evidence thus stricken out does not appear. No other exception requires attention.

Judgment affirmed, with costs. All concur, except McLENNAN, P. J., and KRUSE, J., who dissent.

COOKMAN v. STODDARD et al.

(Supreme Court, Appellate Division, Fourth Department. May 5, 1909.)

1. EXECUTORS AND ADMINISTRATORS (§ 535*)—AccoUNTING-ENFORCEMENT OF

DECREE-CITATION OF SURETIES.

Since Code Civ. Proc. § 2728, requires sureties on an administrator's bond to be made parties to a voluntary accounting by the administrator, a decree of the surrogate on such accounting directing payment of a specified amount by the administrator is not binding on the sureties, where they were not cited and did not appear in the proceeding.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 2462-2475; Dec. Dig. § 535.*]

2. CONSTITUTIONAL LAW (§ 172*)-OBLIGATION OF CONTRACTS-ProcedurePARTIES.

The application of Code Civ. Proc. § 2728, requiring the sureties of an administrator to be made parties in proceedings for a voluntary account

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ing and for judgment on a bond executed before the section was passed, does not impair the obligation of contracts, as it affects the procedure only and not the remedy.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 516; Dec. Dig. § 172.*]

Kruse, J., dissenting.

Appeal from Trial Term, Lewis County.

Action by Helen R. Cookman against Morgan A. Stoddard and another. From a judgment dismissing the complaint, and from an order denying a new trial, plaintiff appeals. Affirmed.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

C. S. Mereness, for appellant.

B. H. Loucks and Frank Bowman, for respondents.

ROBSON, J. This is an action against the surviving sureties upon the bond of one George Wider, as administrator with the will annexed of Charles A. Wider, deceased, in which plaintiff seeks to recover the amount directed to be paid by said administrator to her, as a legatee of said testator, by decree of the Surrogate's Court of Lewis county, made in proceedings instituted in that court by him for a voluntary accounting as such administrator. It is conceded that the sureties-defendants above named-were not cited in said proceedings, and did not appear in any manner therein. The court granted the nonsuit and directed the judgment entered thereon solely because of such failure to cite the sureties and their nonappearance on said accounting. The administrator's bond was in the usual form, except that it does not appear to have been executed by the obligor named therein. Plaintiff relies upon the provisions of the decree of judicial settlement of the administrator's account, by which he is directed to pay to her the sum of $144.57, as fixing the amount for the payment of which, in default of payment by the administrator, defendants are liable to her. If the law stood as it was prior to the amendment to section 2728 of the Code of Civil Procedure, which became operative after the bond was given, and before the proceedings for the administrator's accounting were begun by him, there could be no question of the absolute correctness of her position. The effect of this amendment was to make the sureties upon the bond of the petitioning administrator in proceedings for voluntary accounting parties, whose presence in fact, or by operation of law, either by service of citation on them or by voluntary appearance, was as necessary as that of any other one of the classes of persons designated in the section. If the sureties were not in fact cited, or did not appear, then before decree of distribution could properly be made they must be brought in by supplemental citation as required by section 2743 of the Code. A case apparently decisive in support of this judgment is McMahon v. Smith, 24 App. Div. 25, 49 N. Y. Supp. 93. It is true that the decision in that case held the sureties on the bond bound by the decree of the Surrogate's Court, although they were not parties to the proceed

ing. But the proceedings under review in that case were in a compulsory, not a voluntary, proceeding for accounting. Both the prevailing and dissenting opinions delivered in that case clearly show that, had the proceeding in which the decree then in question was made been for a voluntary accounting, the sureties would not have been bound thereby. Page 28 of prevailing opinion, and page 32 et seq. of dissenting opinion, 24 App. Div., and pages 94, 98, of 49 N. Y. Supp., by O'Brien, J. Appellant's counsel does not seem to question seriously the propositions inferentially, at least, established by that decision. He does, however, insist that, if this amendment is to be given effect as applied to the present case, it would necessarily result in impairing the obligation of the contract expressed in the bond, which was made before this law was passed. His position is that because the statute, as amended, requires that a surety must be made a party to proceedings for voluntary accounting of his principal before he will be bound by the provisions of the decree made in those proceedings, therefore the obligation of the contract expressed in the bond is in some way impaired. But, it would seem, the amendment affects only the procedure to be adopted in enforcing a remedy on the bond. The obligation of the bond is not thereby impaired in the slightest; nor is the remedy denied, or made less effectual than that which existed when the bond was filed. There is added a single necessary step in the formal procedure, viz., making the surety a party to the proceeding, and, this being done, the decree made therein is just as effectual in fixing the sureties' obligation to respond in damages for a breach of the condition of the bond as it ever was. It has always been held that procedure in enforcing a given remedy, even the remedy itself, or the rules of evidence, may be changed, or modified, and the changed condition thereof made applicable to existing contracts, provided only "a remedy be not denied, or so embarrassed with conditions and restrictions as seriously to impair the value of the right." Tennessee v. Sneed, 96 U. S. 69, 24 L. Ed. 610; Black, Const. Prohibition, § 192; Marx v. Hanthorn, 148 U. S. 172, 13 Sup. Ct. 508, 37 L. Ed. 410; Cooley, Const. Lim. (Ed. 1903) 524.'

Judgment and order affirmed, with costs. All concur, except KRUSE, J., who dissents.

KRUSE, J. (dissenting). I think the judgment ought to be reversed. The condition of the bond is that the administrator will faithfully discharge the trust reposed in him as such, and obey the lawful decrees and orders of the Surrogate's Court of the county of Lewis, touching the estate committed to him. The administrator made his petition for a final judicial settlement to the Surrogate's Court, and a decree was made settling his accounts and directing distribution, but the citation was not served upon the sureties. Section 2728 of the Code of Civil Procedure provides that an executor or administrator may present his account and written petition praying that his account may be judicially settled, and that the sureties in his official bond, and other persons interested and named in said section may be cited to attend the settlement. There was no provision for citing the

sureties at the time the bond was executed. It does not seem to me that the failure of the administrator to serve the citation upon the sureties prevents the plaintiff from recovering upon the bond. I think the decree was a lawful decree against the administrator, and that the proceeding in the Surrogate's Court is in no proper sense a remedy upon the bond.

LIGHTFOOT v. DAVIS.

(Supreme Court, Appellate Division, Fourth Department. May 5, 1909.) LIMITATION OF ACTIONS (§ 95*)-CONVERSION OF SECURITIES-WHEN ACTION ACCRUES.

Limitations (Code Civ. Proc. § 382) commence to run against an action for the conversion of corporate bonds from the time the bonds were converted, and not from the discovery of the person who converted them.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. i 473; Dec. Dig. § 95.*]

Appeal from Special Term, Livingston County.

Action by William Lightfoot against Fitch M. Davis, as administrator with the will annexed of William Bowen, deceased. From a judgment for plaintiff for $13,733.27, defendant appeals. Reversed.

See, also, 112 N. Y. Supp. 289.

The action is brought to recover the value of certain school bonds issued by counties in the state of Kansas, of the face value of about $4,000, alleged to have been converted by the defendant's intestate on or about March 18, 1875. The defendant by his answer put in issue the material allegations of the plaintiff's complaint, and pleaded the statute of limitations. The action was referred to a referee, who directed judgment for the value of the bonds, with interest in all the sum of $12,461.59, and judgment was entered for that amount, besides costs. The defendant appeals.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

Edwin A. Nash, for appellant.

Fletcher C. Peck, for respondent.

KRUSE, J. The sole question presented for determination upon this appeal is whether the cause of action is barred by the statute of limitations.

The referee finds that on or about the 1st of March, and previous to the 18th of March, 1875, some person then unknown to the plaintiff, without the knowledge of the plaintiff, and while he was absent from his home, unlawfully entered the plaintiff's house, forcibly pried open a locked bureau drawer, and took therefrom the bonds in question; that said bonds were so taken by William Bowen, the defendant's intestate, who collected the bonds and converted the same to his own use; that the plaintiff made diligent effort, inquiry, and search to find the bonds and to discover the person or persons who stole them, but did not discover the person who had taken the bonds until October, 1899, and after the death of the taker, who died August 25, 1899.

The bonds, when taken, were in an envelope, with a letter describing them. This was the only memoranda the plaintiff had, and was taken with the bonds. Bowen collected the interest on the bonds, and eventually the principal. It does not appear how he collected the moneys, but that he did so appears from an account book kept by him. Bowen was the plaintiff's father-in-law, a member of his household when the bonds were taken, and always lived near him afterward. Strange as it may seem, the plaintiff did not discover who had taken the bonds. until after Bowen's death, when he discovered the envelope, the letter, and the account book, at least he so testifies, and so the referee finds. It was conceded that Bowen left at his death personal property of the value of at least $20,000 as assets of his estate, and the plaintiff asks in his complaint that the defendant account and pay over to him the amount of the bonds and the income thereof, if it can be traced. But the bonds were collected long before the death of Bowen, and there is no evidence by which the proceeds of the bonds can be traced or identified as a part of the $20,000. Indeed, the record is entirely silent upon that subject, except the bare admission to which I have just referred.

The question is whether the statute of limitations commenced to run from the time the bonds were taken and converted, or from the time the plaintiff discovered who had taken them. We think the cause of action accrued and the statute commenced to run when the bonds were taken, and, the action not having been commenced within six years thereafter, is barred by the statute of limitations. Code Civ. Proc. 380, 382. In Allen v. Mille, 17 Wend. 202, which was an action of trover, commenced January, 1834, for the conversion of $20,000 of bank bills, stolen November 15, 1826, the defendant interposed the statute of limitations. The plaintiffs replied that the bills were stolen from them by some person unknown, and secretly kept, and, although the plaintiffs had used great exertions to discover the bills and the person by whom the same were taken, yet the same proved fruitless until June 19, 1833, within six years before the commencement of the action, when they for the first time discovere that the bills so secretly and feloniously taken and so secretly kept were afterwards. converted by the defendant. The defendant rejoined, but it was contended by the plaintiffs that the rejoinder was bad. The question thus raised was decided adversely to the plaintiffs. Chief Justice Nelson in the opinion of the court says:

"Whether the rejoinder is good or bad, however, is not material, as the principal question in the case arises upon the plea; that is, whether a fraudulent concealment of the cause of action by the defendant until after the statute has attached affords a sufficient answer to the plea, provided the suit has been commenced within six years after the discovery. The question has been twice before this court, and after a full discussion decided in the negative. It would be an idle waste of time to go over the argument."

To the same effect is Burt v. Meyers, 37 Hun, 277. It there appeared that certain bonds were wrongfully converted, and it was held that the statute of limitations commenced to run from the time of the conversion, and not from the time that the plaintiff discovered that he had a cause of action. And it was further held that the wrongdoer did

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