In re the Accounts of Van Dyke , 9 N.Y. St. Rep. 137 ( 1887 )

Brady, J.

(dissenting):

The learned surrogate seems to be right in his conclusion as to the effect of section 1819 of the Code upon applications of this chai’acter. Prior to the change made by that section, the period for commencing an action or special proceeding against an administrator for the cause assigned was the same. This is conceded.

The language of section 1819 does not include a special proceeding in hcee verba, but the course of legislation has been such as to indicate the design of having the action and special proceeding exist and go on pari passio together. This is shown by the opinion of the surrogate. There does not seem to be any reason why the proceeding shall be more restricted than the action. Under section 1819, the cause of action is deemed to accrue when the administrator’s account is judicially settled, and not before; and by the provisions of that section, after the expiration of one year from the granting of letters of administration, the person entitled to a legacy or distributive share may maintain against the administrator such an action as the case requires. It requires one of two proceedings, an action or a special proceeding before the surrogate, and, as to both, the time for commencing is intended to be the same.

I think the remedy sustained by the surrogate is, therefore, within the spirit, if not within the letter of the statute, and that the order appealed from should be affirmed, with ten dollars costs of the appeal and disbursements.

Order reversed, with ten dollars costs and disbursements.