In re the Estate of Calcagnini , 33 N.Y.S.2d 599 ( 1942 )

Henderson, S.

On November 21, 1941, the successor cotrustee filed his bond for $120,000. The corporate surety now seeks its release from liability thereon. The respondent opposes the application on the grounds that the bond was filed less than four months ago; that the premium thereon has been paid; that the surety solicited the writing of this bond; that there is no reason for this application; that the account of his cotrustee and his predecessor trustee was settled at considerable expense to the estate just prior to the filing of the bond; that another accounting after such a short interval will work an expensive and unjust hardship upon the estate, and that, if a surety has an absolute right to such relief, an estate might be compelled unjustly to pay for several accountings a year. He also urges that, if the application be granted, all expenses of the resultant proceedings be borne by the petitioning surety.

There seems to be reasonable ground for his righteous indignation, but his plea should be. addressed to the Legislature as this court may not deviate from the clear course laid down by the statute under which the application is brought. (Surr. Ct. Act, § 109.) The language of the statute, “ The surety * * * shall be entitled as a matter of right to be, and shall be, discharged from liability as hereinafter provided, * * .*,” does not permit the court to indulge in any discretion. In a similar statute (Civ. Prac. Act, § 158) language identical with that above quoted was held to bar the exercise of any discretion by the court and to require such discharge without condition. (Matter of Middlebroolc, 280 N. Y. 380.) The unconditional grant of the requested relief is mandatory. (Matter of Middlebrook, supra; Matter of United States Fidelity & Guaranty Co. [Butts], 194 App. Div. 972, revg. 109 Misc. 348; Matter of Schachne, 172 id. 443.)

Application granted.

Settle order directing the successor trustee to file a new bond within five days after the date of entry of such order.