Davis v. Gallagher , 55 N.Y.S. 1066 ( 1899 )

Hardin, P. J.:

There was some conflict in the affidavits used at the Special Term in respect to whether the claim was presented and rejected within the time mentioned in the notice published in accordance with the order of the surrogate for the presentment of claims. The copy of notice required the claims to be presented on or before the 25th of March, 1885. The rejection of the claim signed by the attorney for the administrators of the estate bears date March 23,1885. The affidavits of the plaintiff show that the j claim was presented prior to the 23d day of March, 1885, and they show also, that the defendant Gallagher said he would not pay the account presented, and that he would not refer it under the statute; and when the plaintiff informed him that he would have to sue the claim, the defendant Gallagher replied, Then sue away.” .The affidavits support the conclusion reached at the Special Term, that the claim was presented within the time and rejected, and that there was a refusal to refer. There was also read at the Special Term the certificate of Judge Avery to the effect “ that, before the commencement of this action, and within the time limited by notice published as prescribed by law, requiring creditors to present their claims to defendants, the plaintiff duly presented to the defendants a claim against their decedent's estate, duly made out in items and verified, and being substantially as presented in the issue in this action; that the defendants rejected such claim, and thereafter, and before the commencement of this action, the plaintiff duly offered said defendants to refer said claim to some proper referee, as by statute made and provided, and that such offer was absolutely refused by said defendants.” That certificate bears date October 19, 1896. The learned judge who held the Special Term and granted the order from which the appeal is taken, in an opinion satisfactorily states grounds for granting the order. In Snyder v. Snyder (26 Hun, 324) it was held that if the defendants refused to refer a claim, upon a recovery the plaintiff was entitled to costs. (See Code Civ. Proc. §§ 1835, 1836; Effray v. Masson, 42 N. Y. St. Repr. 657; Nellis v. Duesler, 44 id. 228.) All concurred.