Washington Trust Co. of City of New York v. Baldwin , 102 N.Y.S. 1105 ( 1907 )

Houghton, J. (dissenting):

I think the order of revival was right and should be affirmed.

The laches, of plaintiff is not inexcusable. Action had been brought on the note during the lifetime of testator, and judgment was not entered because of agreed payments which, he made up to his decease. After the qualification of the executor the claim was presented to him in due course, and was retained by him without dispute as to'its validity for years, and until he filed his accounts in-'the Surrogate’s Court. The retention of the claim without ^rejection for such- length of time naturally and. properly led plaintiff to assume' that there was no question of its genuineness. If it was admitted as a claim agairist the estate, as plaintiff had a right to assume it was, there was no occasion to revive the action and seek to obtain judgment, for no necessity existed therefor and no advantage or preference could be obtained thereby. By defendant’s'own act of retaining the claim without dispute, he led plaintiff to assume there was no occasion to revive the action and no laches on plaintiff’s part can be predicated on the course it pursued.

The defendant does riot pretend that any witness who could testify to the invalidity of the note has died, so that he has been deprived of his evidence by the delay. He says some persons have died but refrains from stating they could testify to any facts if they were alive. He also says he does not know of any facts on which to base a defense and does not know of any persons now alive who do. Ho more did his testator know of any defense, .and he expressly recognized the validity of the note by making payments after the action was begun against him. The delay has not .prejudiced defendant or deprived him of any testimony or defense he-once had.

On the other hand, if it was true, as defendant asserts, that he now has the right to dispute the note and interpose the defense of the'Statute of Limitations, the plaintiff will suffer irreparable injury. More than nine years have elapsed since the death of the testator, and more than eight years since the presentation of the claim. The plaintiff has no possible answer to the Statute of Limitations if it can now be interposed.

Personally, I do not think the law is or ought to be that an executor or administrator can retain a claim duly presented against his estate until the six-year Statute of Limitations lias run and then reject it and plead the statute; but the defendant asserts that right, and -on the assumption that such right exists it seems to me a very grave judicial error to deny "to plaintiff the right to revive and prosecute its action to judgment.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.