Geraerdts' Will, In re

• Court: New York Surrogate Court
• Citation: 211 N.Y.S.2d 915
• Parties: In re GERAERDTS' WILL. Application of Millie KADE, Executrix of the Estate of Eugene Kade, deceased, to compel Frieda Ostermeyer to render and settle her account as Administratrix with the Will annexed of the Estate of William Geraerdts, Deceased. Surrogate's Court, Westchester County
• Decision Date: 23 January 1961

Page 915

211 N.Y.S.2d 915 In re GERAERDTS' WILL.
Application of Millie KADE, Executrix of the Estate of
Eugene Kade, deceased, to compel Frieda Ostermeyer to render
and settle her account as Administratrix with the Will
annexed of the Estate of William Geraerdts, Deceased. Surrogate's Court, Westchester County. Jan. 23, 1961.

Page 916

Turk, Marsh, Ouchterloney & Kelly, New York City, for petitioner.

Davis Polk Wardwell Sunderland & Kiendl, New York City, for respondent.

Julian A. Ronan, New York City, for respondents.

JOHN J. DILLON, Surrogate.

This is a proceeding for a compulsory accounting instituted by the executrix of the estate of a judgment creditor. Answers were filed by the administratrix c. t. a. and by the trustees of the estate of one of the sureties and the surviving individual surety on her bond. The answers challenged the status of the petitioner to demand an accounting, alleging among other things that the claim is barred by the statute of limitations and by laches and estoppel. Since the account, if directed to be filed, would cover a period of nearly thirty-five years the court held a preliminary hearing to determine the question of status.

The original cause of action upon which the petitioner's claim is based appears to have arisen in or about 1921. In December, 1925, Eugene Kade commenced an action for an accounting in the Supreme Court, Westchester County (subsequently transferred to Kings County), against William Geraerdts, the testator, and Sanitary Fireproofing & Contracting Co. The theory of the action was that Kade and Geraerdts had entered into a partnership, and that Geraerdts had wrongfully diverted the partnership profits to the defendant corporation which he controlled. On April 11, 1926, while the action was pending, Geraerdts died. His will was admitted to probate by this court and Frieda Ostermeyer was appointed administratrix c. t. a. Henry P. Thompson and Madeline O. Thompson, his wife, became sureties on the fiduciary's bond. Kade thereupon in effect discontinued his action against Geraerdts and elected to proceed only against Sanitary Fireproofing & Contracting Co. The action was still pending when Henry P. Thompson died on October 13, 1930. His will was likewise admitted to probate by this court, his widow and Guaranty Trust Company being appointed executors and trustees. In June, 1932, a decree was entered settling the accounts of the executors of the Thompson estate. The widow and Guaranty Trust Company (now Morgan Guaranty Trust Company) are still functioning as trustees of that estate.

After two trials, with intervening appeals to the Appellate Division and Court of Appeals, Kade v. Sanitary Fireproofing & Contracting Co., 227

Page 917

App.Div. 622, 236 N.Y.S. 78; 228 App.Div. 646, 238 N.Y.S. 858; 257 N.Y. 203, N.E. 421, judgment was directed in the Supreme Court action in favor of Kade against Sanitary Fireproofing & Contracting Co. on July 3, 1934, in the sum of $107,877.35, but judgment was not entered until some two years later. The judgment remains unsatisfied.

In 1936 Kade commenced a similar action in the Supreme Court, New York County, against Frieda Ostermeyer individually. The action resulted in a judgment against the individual defendant, entered on April 26, 1939, for $128,652.38. That judgment likewise remains unsatisfied.

Up to this point, and in fact until 1941. Kade had never sought relief in any forum against the estate of William Geraerdts. In the meanwhile the estate had been fully distributed, although no accounting was filed. In 1941 Kade commenced two new actions in the Supreme Court, New York County, both having their origin in the same basic cause of action. One of these is important because it furnishes the foundation for the present proceeding. This was an action against Frieda Ostermeyer, as administratrix, c. t. a. of the William Geraerdts estate, and two other defendants, not including however the sureties on the bond. In that action a default judgment was entered against Frieda Ostermeyer, as administratrix, on August 2, 1943, for $73,534.02, the action having been severed as to the other defendants. This judgment, like the others, has never been satisfied, and is the...