In re the Estate of Fogel

Delehanty, S. In this accounting proceeding a motion is made by one of the claimants against the estate for a trial of her claim by the court and a jury. The claim is one for work, labor and services and is of a type v hich is customarily tried in the accounting proceeding by the court alone. The special reason urged for the granting of the motion in this instance is that the estate representative resides in the State of Pennsylvania and in consequence objectant was unable to effectuate service upon her within the three-month period limited for the commencement of an action on a rejected claim. The moving papers assert that within the three-month period an application for an order for publication of the summons was made to the Supreme Court and was denied. Whether an order on such denial was entered does not appear from the moving papers. Since the estate res was within this jurisdiction it is apparently settled by controlling authority (Devlin v. Roussel, 36 App. Div, 87) that service by publication would have been a proper method-of instituting an action on the claim. If there was error in the denial of the application for the order of publication, the remedy of the claimant was by appeal therefrom.. [369] On the present record the statutory rule for the trial of the claim (Surr. Ct. Act, § 211) is operative and it must be tried in the accounting proceeding. There is no basis for exercising discretion in ordering a jury trial. The motion, therefore, is in all respects denied. The time of the claimant for filing objections to the account has been extended until five days after the determination of the application for a jury trial. The order to be entered will provide for a date within which objections must be filed. If the order is entered promptly the hearing date already fixed, May 21, 1941, at ten o’clock a. m., will serve for the hearing of the objections, if any, filed by this claimant. Submit, on notice, order accordingly.