In re the Judicial Settlement of the Accounts of Ablowich , 103 N.Y.S. 699 ( 1907 )

Patterson, P. J.:

I concur in the view expressed by Mr. Justice Ingraham, “that when this accounting administrator accepted the letters of administration issued to him,' he was chargeable with the amount of this indebtedness represented by the notes and checks of the firm of which he was a member as'so much money in his hands for the usual purposes of administration.” I do not, however, concur in the view that when the letters of Julius Ablowich were revoked before the estate was administered and he turned the notes and obligations of his firm over to Iris successor, as ad ministrator, and those evidences of debt were accepted by such successor, that thereby Julius Ablowich ceased to be chargeable with the amount of the indebtedness of his firm to the estate. If by reason of his appointment as administrator he became chargeable with the amount of the various obligations of his firm, that was a situation in which he was placed by the law. He could not discharge himself from it by turning over the evidences of his own indebtedness to his successor, nor could his successor discharge him by the acceptance of such evidence of indebtedness. If by his becoming administrator, the debt of Julius Ablowich to the estate is to be regarded as assets in his hands, he must be charged with such assets in his account and can only be discharged in the manner provided by law. It seems to me that this is not a case in which the doctrine of the election of inconsistent remedies by the present admistrator applies.

I think the decree of the surrogate confirming the report of the referee overruling the objections to the account of Julius Ablowich should be reversed, with costs, and the proceeding remitted for further action.

Houghton and Scott, JJ., concurred; Ingraham and McLaughlin, JJ., dissented in part.