In re Richardson’s Estate 9 N.Y.S. 638

Ransom, S.

This is an application by one of the executors of the will of deceased for leave to compromise a claim due the estate. The claim is for a deficiency arising out of a foreclosure sale of real property. In his life-time the deceased commenced an action against the defendant for the deficiency, which is now pending. The petition alleges that “petitioner, after a thorough examination of the questions involved in the suit and the responsibility of the defendant therein, and upon the advice of his attorney, ” is fully satisfied that it is for the interest of the estate to accept the compromise. The affidavit of the attorney is attached, in which he says that he has examined the questions involved, and considered the probability of collecting judgment against the defendant, if any should be obtained, and from such information he .is satisfied it will be to the advantage of the estate to accept the compromise. The statute authorizing the application to the surrogate provides for the approval *639of the compromise “on good and sufficient cause shown therefor.” Laws 1847, c. 80, § 1; 4 Rev. St., (8th Ed.,) p. 2563. The compromise thus effected does not deprive any party interested in the estate from showing, on final settlement of the accounts, that such debt or claim was fraudulently or negligently compromised, and the same evidence should be before the surrogate on this ex parte application as would be required to justify the same, if attacked on an accounting. In the present proceeding, no facts are stated, beyond the existence and status of the debt, and its nature, and that one of the executors and the attorney in the suit believed the compromise to be advantageous. The facts and circumstances leading them to that conclusion are not stated, and the surrogate is called upon to ratify their judgment without knowledge as to its foundation. The statute provides for the judgment and opinion of the surrogate, and he must be fully informed of all the facts and circumstances warranting the acceptance of a sum less than the face of the claim before the compromise will merit or receive his indorsement. If the defendant is insolvent, that fact should be stated, and any circumstances establishing same. If the reason for the compromise is the unsettled state of the law making the prosecution of the claim hazardous, or for any other cause the successful termination of the suit is doubtful, full information should be furnished on that subject. The surrogate is frequently called upon to authorize the compromise of actions brought by personal representatives of decedents to recover damages for occasioning their death. This class of compromise applications exceeds all others in number. In such cases, the evidence in the possession of plaintiff should be set forth in detail. The consent of parties interested in the fund should be furnished where obtainable, and in all such cases the interest of the attorney in the result of the litigation, and whether contingent, should be mentioned. I have considered this application in detail, and at greater length than the particular case requires, for the reason that these applications have of late greatly increased in number, and I am almost invariably compelled to return the papers to counsel in order that information of the character herein indicated may be supplied. Application denied.