Dawbarn v. Fleischmann

Dowling, J.: Defendant appeals from an order denying his motion for judgment on the pleadings and the questions presented are: (1) Whether the facts set forth in the second separate defense constitute a bar to plaintiff’s recovery,. in that his claim is within the short Statute of Limitations; and (2) whether the reply served by plaintiff sets up facts sufficient to prevent the start or continuance of the running.of the statute. The action is brought to recover the sum of $2,000 for professional services rendered by plaintiff as a physician and sur-' geon, between the 15th and 22d days of July, 1909, at the special instance and request of Hoses Hirshfield, in the treatment of his sister Elizabeth. Hirshfield died April 6, 1910, and defendant duly qualified as executor of his last will and testament. The complaint sets forth due demand upon defendant and his refusal to pay the claim. By his second separate defense defendant admits the presentation of plaintiff’s claim against the estate on June 29,1910, and avers that on July 6, 1910, he disputed and rejected the same by mailing both to plaintiff and to his attorney by regis — 59 — tered letter, at their respective addresses, a notice of rejection, whereof the following is a copy: “ Surrogate’s Court — Erie County. In the Matter of the Estate of Moses Hirshfield, deceased. “To Robert H. M. Dawbarn, M. D., ' “ # 105 West 74th Street, “ New York City, and to “Henry 0. Quinsy, Esq.,'his attorney, “ $ 165 Broadway, “New York City: “Gentlemen. — You will please take notice that the undersigned doubts the justice and validity of the claim of the above-named claimant, Robert H. M. Dawbarn, M. D., of Two Thousand Dollars ($2000) against the above named estate,- heretofore presented to me, and I hereby dispute and reject the same and offer to refer it, under the statute, to some suitable and proper person as referee, to be approved by the Surrogate, to hear and determine the same, according. to the statute, or consent that the said claim may and shall he submitted to the Surrogate for determination by him upon my accounting as Execjitor of said estate. “Dated, Buffalo, N. Y., July 5, 1910. c ‘ SIMON FLEISCHMANN, “ Executor of the Last Will and Testament of Moses Hirshfield, Deceased.” It is then further set forth: “That said plaintiff• had never offered or consented to refer his said claim, under the statute or otherwise, to any person as referee whatsoever, nor has said plaintiff consented in any manner nor ever filed any consent with the Surrogate of the County of Erie, or in his office^ wherein said Estate is being administered, that his said claim he heard and determined by said Surrogate upon the judicial settlement of the accounts of this defendant as such Executor, or otherwise; “ That this action was not begun within a period of six — 60 — ■ months after the said dispute and rejection, by this defendant of plaintiff’s alleged claim, but was begun on or about the 20th day of March, 1911, by the service of the summons and complaint upon this defendant. ‘ ‘ That the alleged cause of action set forth in the complaint did not accrue within six months before the commencement of this action, and this defendant pleads the Statute of Limitations, in such case made and provided, on bar’ and defense to the alleged cause of action set forth in the complaint.” By his reply to the second separate defense the plaintiff admitted that he and his attorney ^received the notice in question, but terms it a notice of dispute and denies that it was a notice of rejection. He then further avers: “ Third. This plaintiff further alleges that after the service of what purported to.be a rejection of the plaintiff’s claim herein that negotiations were carried on between the parties hereto with reference to this claim, looking toward a settlement 5of same. “Fourth. . Further replying to- the said second separate defense in defendant’s answer contained, this plaintiff alleges ■ that after the death of the decedent herein, and after the appointment' of the said Simon Fleischmann as executor, the said Simon Fleischmann was without the State of New York and outside of the United States for several months, during the period of which absence the running of the said short Statute . of Limitations was stopped, pursuant to the terms of said statute in that case made and provided. ” He then further avers that defendant has never filed any inventory of the estate whereof he is executor nor has he published any notice requiring creditors to present their claims, and that he denies the allegation “ that he never consented to refer .this claim, but alleges that he-did so consent in writing.” We believe that the notice given by the executor was a valid notice, of rejection of claim within the meaning of section 1822 of the Code of Civil Procedure, that the provisions of that section apply, and that the period of limitation of six months thereby provided began to run as soon as the notice was given. The phraseology of the notice was taken in part from that of the statute. The word “ reject ” was used advisedly, and the — 61 — executor not only disputed the claim hut absolutely rejected it, and indicated to the claimant the alternative methods by which he might avoid the operation of the Statute of Limitations, i. e., either file with the surrogate his written consent to the determination of the claim upon the accounting by the executor, as required by section 1822, or as an additional method voluntarily offered by the executor, consent to refer the claim under section 2718. Neither method was one which the executor was bound to offer, for the effect of his rejection of the claim was to set the statute running, and his consent to submit it to the. surrogate for determination upon his accounting only gave notice to the claimant of his willingness to proceed in that way and avoid the expense of an action, if the claimant should accept that course and file a similar consent; while the reference offered an opportunity to claimant to secure a speedier adjudication than by action, if he desired so to proceed. The latter was an additional method available in the case of a disputed claim, but it in no way destroyed the effect of the absolute, rejection of the claim. The cases relied on by the claimant to bring the claim under the provisions of section 2718 as a disputed one only, have no application here. In none of them was the word “ reject ” used by the party disallowing the claim. Thus in Matter of Eichman (33 Misc. Rep. 322) the surrogate distinguished between the case where an executor had a doubt as to the validity of a claim, not sufficiently well established to warrant him in absolutely rejecting it and, therefore, doubted its justice only, in order to secure a reference thereof, whereupon the provisions of section 2718 applied and no short Statute of Limitations existed, and the case of an absolute rejection of the claim, in which section 1822 applies and such a statute begins to run. In that particular case the executor simply doubted the justice of the claim and offered to refer it under section 2718, and no words were used by him importing a rejection. In Hoyt v. Bonnett (50 N. Y. 538) the executor declined to pay an account and asked for a bill of particulars thereof, qnd the court said that the claimant was entitled to know whether his claim was definitely disputed or rejected, so that he will be without excuse if he fails to resort to his action. On the other hand, it — 62 — was held in Matter of Mudge (118 N. Y. Supp. 568), where an executor wrote a letter to a claimant rejecting his claim and offering to refer it, and inclosed a notice doubting the justice of the claim, disputing it and offering to refer, that the claim hád been properly rejected and the provisions of section 1822 applied. The defense in question setting up facts from which it appears that the statute had run against plaintiff’s claim, is there anything set up in the reply which defeats its operation ? The receipt of the notice is not disputed, and the .only question raised as to its validity is that it is not a notice of rejection. That we believe must be settled adversely to the plaintiff, fot the reasons before given. The allegation that negotiations were carried on between the parties after the rejection, looking to a settlement of the -claim, is insufficient to stay the run-. ning of the'statute, hío case can be found so holding. Hoyt v. Bonnett (50 N. Y. 538) is authority for the proposition that if, in the same notice or declaration or at the same time, the executor does or says anything from which claimant may reasonably infer that the determination to dispute or reject is not final, but will be further examined or considered, either on vouchers already exhibited or such as may thereafter be presented, the claim is not disputed or rejected within the meaning of the statute. In Calanan v. McClure (47 Barb. 206) an offer of compromise had been made by the executor, the final rejection was delayed, and the actions of the executor were such as- to induce a belief in the mind' of the claimant that the rejection was not final. To the same effect is Adler v. Davis (31 Misc. Rep. 47). This paragraph of the reply contains no averment sufficient to show that the rejection of the claim was ever withdrawn or waived; that plaintiff ever so believed, the period of time over which the negotiations extended, or that the claimant was either misled, deceived or prejudiced thereby. The allegation that the claimant consented, in writing, to .refer his claim is immaterial, even if true, for it is not alleged that such consent was ever communicated to defendant; and what is required by. both sections 1822 and 2718 is that the consent therein provided for. be filed with the surrogate, which it is not .attempted to aver was done. It is further averred in the reply that the executor was without the State and the United States — 63 — during a part of the period in question; but there is no allegation that he was without the State when the cause of action against him accrued, no allegation that he was absent from the State for one year continuously, and in fact no allegation of what the period of absence was. Section 401' of the Code of Civil Procedure, therefore, has no application. In the case of Hayden v. Pierce (144 N. Y. 512) the defendant executrix was continuously a non-resident of the. State from the time of the death of her testator. Finally, the fact that no inventory' had been' filed and no notice to present claims published, is no bar to the operation of the statute. The case of Ulster County Savings Institution v. Young (161 N. Y. 23) was one of a verbal rejection of an oral claim, and the court held that as section 1822 applied to the. rejection by an executor of a claim “exhibited to him,” the language of the statute “clearly indicates that the claim exhibited must be in writing.” It was so in the present case. The order appealed from must, therefore, he reversed, with ten dollars costs and disbursements, and the motion for judgment on the pleadings in favor of defendant granted, with ten dollars costs. Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred. ’ ■ • . Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.