Guernsey v. Cheyne , 18 Abb. N. Cas. 361 ( 1887 )

Lawrence, J.

It is provided by section 1817 of the Code of Civil Procedure that “ in an action or special proceeding against two or more executors or administrators, representing the same decedent, all are considered as one person, and those who arc first served with process, or first appear, must answer the plaintiff. Separate answers by different executors or administrators cannot be required or allowed except by direction of the court.”

In this case it appears that the executrix, who was not served, has appeared before the referee, and that her counsel has cross-examined the witnesses for the plaintiff at great length. It docs not appear that she did not know of the proceedings before the commencement of the trial, and it is quite apparent that her counsel has been the chief actor on the part of the defendants before.the referee. The answer which she proposes to interpose is in substance that the services alleged to have been performed by the plaintiff for the decedent were gratuitous, for the reason that the custom prevails among members of the ■ medical profession in ■ this city to attend each other without charge.

It seems to me that the proper disposition to make of this ease, is this : Upon the payment of costs of motion the executrix should be allowed to serve her answer forthwith. If a reply should be necessary the plaintiff should be allowed to serve the same within five days after the service of the answer, and as the executrix has had the benefit of counsel, in view of the provisions of the section of the Code above cited, the testimony and proceedings before the referee, heretofore taken, should be allowed to stand; the reference, if so desired by the plaintiff, must proceed on two days’ notice, and be continued from day to day, unless, in the exercise of his discretion, the referee shall otherwise direct.