Maranov v. Philatelic Research Laboratories, Inc.

Judgment for defendants-executors unanimously reversed and a new trial ordered, with costs to the appellant to abide the event. Section 211 of the Surrogate’s Court Act is not applicable when at the time the claim is presented and rejected by the estate there is pending an action for recovery on such claim. Mahler v. Searl (261 App. Div. 936) is not applicable; in that ease there was involved a claim which under section 1171-b of the Civil Practice Act, as it then read, was considered not enforcible by judgment after the death of the husband. Of course, plaintiffs third cause of action, if different from the first cause of action, is barred by section 211, as it would also be barred by the six-year Statute of Limitations. On that we do not pass at this time. That will be properly determinable upon the trial. In the circumstances the motion to withdraw a juror should have been granted. The dismissal of the complaint against the corporate defendant unanimously reversed. Present — Dore, J. P., Cohn, Van Voorhis and Breitel, JJ.