Hartshorne v. King , 1 Denio 674 ( 1845 )

By the Court, Jewett, J.

The plaintiff is clearly entitled to costs in this suit, to be levied of the property of the testator, upon the ground that the claim was disputed by the defendants, and that they refused to accept of the plaintiff’s offer to refer pursuant to the statute. (Bullock v. Bogardus, ante, p. 276.) There was no .attempt by the plaintiff to recover in this suit any other demands than the specific demand repeatedly presented for pay-' ment, which was disputed and rejected by the defendants, and which they refused to refer.

It is said that the declaration counted upon other claims than that of which the memorandum was the evidence, which, it is argued, was an enlargement of the plaintiff’s claim, and ought to deprive him of the benefit of his offer to refer. (Knapp v. Curtiss, 6 Hill, 386.) It is true the declaration is such that evidence of other demands was admissible under it, but there is not the least evidence that any attempt was made to give any such evidence, or that the plaintiff ever at any time designed it. If the plaintiff had served a bill of particulars and in that had claimed other demands, there might have been some plausibility for the argument.

Whether the suit was brought in time to save the statute bar of six months provided for by 2 R. S. 89, § 38, is not now a question. That was a proper question to be disposed of on the trial; and if the referee decided erroneously, it can be corrected only on motion to set aside his report. That defence is in bar of this suit against the defendants. The question of costs is to be decided upon the assumption that the suit was commenced in time after the claim was exhibited, disputed or rejected, and not referred. The motion must be granted, the amount to be levied of the property of the testator, with costs of the motion.

Motion granted.