Act not to invalidate pending suits, etc. § 3. This act shall not prejudice or invalidate any suit or proceeding already commenced and now pending to set aside any private sale made by any executor since said first day of September, eighteen hundred and eighty. Repeal. § 4. All acts and parts of acts inconsistent herewith are hereby repealed. TITLE V. Of the Rights and Liabilities of Executors and Administrators. SEC. 1. Executors, etc., not to be liable on certain promises, unless made in writing. 2. Actions upon contract may be brought by and against executors. 3. Administrators entitled to same actions and subject to same liabilities as executors. 4. When actions for trespass may be maintained by executors, etc. 5. When executors, etc., liable to actions of trespass. 6. Executors and administrators of executors, etc., when liable. 7-22. [Repealed.] 23. Provisions of this chapter to extend to one of several executors, etc., and to executrix, etc. 24. [Repealed.] TITLE 5. executors, SECTION 1. No executor or administrator shall be chargeable Liability of upon any special promise to answer damages, or to pay the debts of the testator or intestate, out of his own estate, unless the agreement promises. 22 Hun, 444. for that purpose, or some memorandum or note thereof, be in writing, and signed by such executor or administrator, or by some other person by him thereunto specially authorised. and against § 2. Actions of account, and all other actions upon contract, Actions by may be maintained by and against executors, in all cases in which executors. the same might have been maintained, by or against their respective testators. 23 Hun, 123; 6 N.Y., 168; 88 5 Wend., 318; 12 Barb., 21; trators' rights and liabilities. § 3. Administrators shall have actions to demand and recover the Adminis debts due to their intestate, and the personal property and effects of their intestate; and shall answer and be accountable to others to 1 Redf., whom the intestate was holden.or bound, in the same manner as executors. 278. [114] tors, &c. § 4. Executors and administrators shall have actions of trespass Trespass against any person who shall have wasted, destroyed, taken or carried by execu away, or converted to his own use, the goods of their testator or intestate in his life time. They may also maintain actions for trespass committed on the real estate of the deceased in his life time. 37 Hun, 194; 13 N Y., 334; 28 Barb., 607; 19 Barb., 471; 16 How. Pr. R., 279; 25 How. or § 5. Any person, or his personal representatives, shall have actions of trespass against the executor or administrator of any testator or intestate, who in his life time shall have wasted, destroyed, taken carried away, or converted to his own use the goods or chattels of any such person, or committed any trespass on the real estate of any such person. against ex Trespass entors, &c. 471; 6 Abb. Pr., 354 35 13 Abb. 19 Barb., Barb., 598; Pr., 301; 44 § 6. The executors and administrators of every person, who, as Liability of &c. executor, either of right or in his own wrong, or as administrator, executors, shall have wasted or converted to his own use, any goods, chattels, or estate, of any deceased person, shall be chargeable in the samemanner, as their testator or intestate would have been, if living. [Sections 7-22, including the duplicate § 19 (inserted by L. 1830, ch. 320), were repealed by L. 1880, ch. 245.] 2 Abb., N. Applica tion of this chapter. § 23. All the provisions contained in this chapter, or in any of the statutes of this state, relative to executors and administrators, shall apply and extend to a single executor or administrator, and to an executrix or administratrix. [Section 24 was repealed by L. 1880, ch. 245.] [118] TITLE VI. Of Public Administrators. ART. 1.-Of the public administrator in the city of New York. ART. 2.-Of public administrators in the several counties of this state, other than the county of New York. [Supplementary Article. ART. 2A.-Of the public administrator in Kings county.] ARTICLE FIRST. OF THE PUBLIC ADMINISTRATOR IN THE CITY OF NEW YORK. SEO. 1. How appointed, and the tenure of his office. 2. Oath of office to be taken, and bond to be executed by him. 3. His commissions, how accounted for and paid; his salary. 4. Cases in which he is authorised to act. 5. Authority not to extend to certain cases. 6. In certain cases, not to interfere without order of surrogate. 7. Upon what proof, order to be granted. 8. When subpoena to be issued by surrogate, to discover concealed effects. 9. If surrogate be absent, certain other officers may issue subpœna. 10. Subpoena how served and enforced. 11. Witness appearing, to be sworn and examined. 12. When warrant to issue, to seize effects concealed or withheld. 13. Warrant may be stayed, by giving a bond; its conditions. 14. Duty of health officer respecting effects at the quarantine. 15. When perishable property taken by public administrator may be sold. 16. When to give notice of application for letters of administration. 17. Notice how to be served and published. 18. Persons interested may appear and contest the granting of letters. 19. When letters to be granted to executor, or widow, or relative. 20. Upon granting such letters, authority of public administrator to cease. 21. Previous expenses to be deducted from assets, and balance to be paid to executor. 22. If there be not sufficient assets to pay expenses, to be paid by executor, etc. 23. When letters of administration to be granted to public administrator. 24. In what cases public administrator to give notice that he will administer. 25. How such notice is to be served and published. 26. Affidavit of having undertaken administration, etc., to be filed. 27. Public administrator from thenceforth to administer on the estate. 28. Powers of public administrator before letters granted or affidavit filed. 29. In certain cases, notices to be served on foreign consuls. 30. If lawful executor, etc., appear, assets to be delivered to him, after deduct ing expenses. 31 & 32. Cases in which powers of public administrator shall be superseded. SEC. 33. When so superseded, to deliver over assets, after making certain deductions. 34. Suits commenced by public administrator, may be continued by his successor. 35. The rights and powers of public administrator on any estate, enumerated. 36. To deposit monies received by him in certain bank. 37. Monies deposited, how to be drawn out. 38. Advances, not exceeding fifty dollars, may be made to relatives. 39. Account of public administrator to be annually exhibited on oath. 40. Account to be published in New-York and in state paper. 41. Penalty for not accounting, or not publishing account. 42. Corporation of New-York to be responsible for conduct of public administrator. 43. And for monies received and stock transferred; remedy of persons aggrieved. 44. On resignation, etc., of public administrator, papers, etc., to be delivered to his successor. 45. Keepers of boarding-houses, etc., to report death of transient persons; penalty for neglect. 46. Penalty not to be recovered without proof of notice of last section. ART. 1. How ap. pointed, etc. 4 Sandf., 1; bond. SECTION 1. The mayor, aldermen and commonalty of the city of New York, in common council convened, from time to time, and as often as a vacancy in the office shall occur, may appoint a competent Robt.,560. person to be the public administrator in the city of New York, who shall hold his office during the pleasure of the said common council.1 § 2. Before entering upon the duties of his office, the person so Oath and appointed shall take the oath prescribed by the Constitution, and shall execute a bond, with such sureties as shall be approved by the mayor or recorder of the said city, to the mayor, aldermen and commonalty thereof, in the penal sum of ten thousand dollars, conditioned for the faithful discharge of all duties enjoined on him by law, and particularly, that he will account for, and pay over, all monies and property, that may come to his hands as such administrator, according to law. sions and salary. 42 N. Y., 309. § 3. The public administrator shall retain a commission, over and Commisabove all expenses, upon all monies that shall come into his hands, at the rate of five dollars upon the hundred dollars, upon all sums received from any one estate, not exceeding two thousand five hundred dollars; and upon all sums so received, exceeding that sum, at the rate of two dollars and fifty cents upon every hundred dollars; which sums may be so retained in preference to any debts or claims, excepting funeral charges. The monies so retained shall be accounted for, and paid by him, into the treasury of the city of New York. He shall be allowed and paid quarterly, such salary for his services, as the common council of the city shall prescribe, not less than one thousand two hundred and fifty dollars annually. rity. Ch. R., 493; § 4. In the right of his office, he shall have authority to collect His authoand take charge of the goods, chattels, personal estate, and debts, 2 Johns., of persons dying intestate, and for that purpose, to maintain suits as 3 Redf, 91. public administrator, as any executor might by law, in the following cases: I. Whenever any person shall die intestate, either within this state or out of it, leaving any goods, chattels, or effects within the city and county of New York: 2. Whenever any goods, chattels, or effects of any person who By an amendment of the charter of the city of New York, L. 1857, ch. 446, § 21, the public administrator was made the head of a bureau in the law department, and to be appointed by the counsel to the corporation. See the consolidation act, L. 1882, ch.410, §§ 48, 216, et seq.] [119] TITLE 6. shall have died intestate, shall arrive within the said city and county, after his death: Id. Order of surrogate, essary. 3. Whenever any person, coming from any place out of this state, in a vessel bound to the port of New York, and arriving at the quarantine, near the city of New York, shall there die intestate, and shall leave any effects either at the said quarantine, or in the city of New York, or elsewhere: 4. Whenever any effects of any such person so arriving and dying intestate at the said quarantine, shall, after his death, arrive either at the said quarantine, or within the city of New York: 5. Whenever any person, coming from any place out of this state in a vessel bound to the port of New York, shall die intestate on his passage, and any of his effects shall arrive at the said quarantine: In all the preceding cases, intestacy shall be presumed, until a will shall be proved, and letters testamentary be granted thereon. § 5. But the last section shall not confer on the public administrator, any authority in respect to the estate of any person not a citizen of this state, dying out of this state, or on board any foreign vessel within the harbor of New York, unless, 1. Such person shall have landed within the city and county of New York, or at the quarantine near the said city: or, 2. Unless the effects of such person, or some part of them, shall have been so landed; and when any effects of such person shall have been so landed, the authority of the public administrator shall extend to such effects only. [Act of April 21, 1828, 415.] § 6. Whenever there shall be any widow, or next of kin of any when nec such intestate, entitled to a distributive share in his estate, residing in the city of New York at the time of his death, the public administrator, upon receiving notice of such fact, shall not have any authority to interfere with the effects of the deceased, until he shall have obtained an order from the surrogate of the city and county. of New York to take charge thereof. When order to be granted. [120] Subpoena concealed effects. 7. Such order may be granted by the surrogate, upon the application of the public administrator, and upon due proof being made to him by affidavit, that the effects of the deceased are in danger of waste or embezzlement, or that for any other reason, it would be for the benefit of the estate to have the same, or any part thereof, seized and secured. § 8. Whenever, in any of the cases in which the public administo discover trator is authorised to take charge of the effects of any intestate, any goods, chattels, credits or effects of the deceased, or of which he 4 Dem., 139. had possession at the time of his death, or within twenty days previous thereto, shall not have been delivered to the public administrator, nor accounted for, satisfactorily, by the persons who were about the deceased in his last sickness, or in whose hands the effects of the deceased, or any of them, may be supposed at any time to have fallen, the public administrator may institute an inquiry concerning the same; and upon satisfying the surrogate of the city and county of New York, by affidavit, that there are reasonable grounds for suspecting that any such effects are concealed or withheld, he shall be entitled to a subpoena to be issued by the surrogate under his seal of office, to such persons as the said public administrator shall designate, requiring them to appear before such surrogate, at the time and place therein to be specified, for the purpose of being examined, touching the estate and effects of the deceased. 9. If the surrogate be absent from the city of New York, such Id. application for a subpoena, may be made to the circuit judge of the first circuit, to the first judge of the court of common pleas of the said city and county, or to the mayor or recorder of the said city, either of whom is hereby authorised to issue such subpoena, under his hand and private seal, in the same manner as the surrogate. ART. 1. served and § 10. Such subpœna shall be served in the same manner as in civil How causes, and if any person shall refuse or neglect to obey the same, enforced. or shall refuse to answer touching the matters hereinafter specified, he shall be attached and committed to prison, by the said surrogate or other officer so issuing such subpoena, in the same manner as for disobedience of any citation or subpoena, issued by a surrogate in any case within his jurisdiction. tion of wit. ness. § 11. Upon the appearance of any person so subpoenaed before Examina such surrogate or other officer, he shall be sworn, truly to answer all questions concerning the estate and effects of the deceased, and shall be examined fully and at large, by the public administrator, in relation to the said effects. when to 3 Bradf., 244. § 12. If upon any inquiry, it shall appear to the officer conducting Warrant, the same, that any effects of the deceased are concealed or withheld, issue. and the person having the possession of such property, shall not give the security in the next section specified, for the delivery of the same, such officer shall issue his warrant, directed to the sheriff, marshals and constables of the city or county, where such effects may be, commanding them to search for and seize, the said effects, and for that purpose, if necessary, to break open any house in the day time, and to deliver the said property so seized, to the public administrator, which warrant shall be obeyed by the officers to [121] whom the same shall be directed and delivered, in the same manner, as the process of a court of record. stay war § 13. But such warrant shall not be issued to seize any property, Bond to if the person in whose possession such property may be, or any one rant. in his behalf, shall execute a bond, with such sureties, and in such penalty as shall be approved by the surrogate, or other officer, acting in his place, to the public administrator in the city of New York, conditioned that such obligors will account for and pay to the said. public administrator the full value of the property so claimed and withheld, (and which shall be enumerated in the said condition,) whenever it shall be determined in any suit to be brought by the public administrator, that the said property belongs to the estate of any deceased person, which the administrator has, by law, authority to collect and preserve. health offi § 14. Whenever any effects of a deceased person, of which the Duty of public administrator is authorised to take charge, shall be at the cer in quarantine at the time of the death of such person, or shall arrive certain there afterwards, it shall be the duty of the health officer, or his deputy, whichever shall be present, to secure the said effects from cases. |