King v. Todd — 27 Abb. N. Cas. 149

Majority

p. 149

KING v. TODD.

N. Y. Common Pleas, Trial Term;

May, 1891.

Headnote

1. Costs against administrator.] In an action against an administrator, plaintiff cannot recover costs, if he failed to present his claim in writing before the expiration of the time specified in the published notice within which creditors were required to present their claims. A verbal notice is not sufficient.

2. The same.] Where the claim has not been presented within the required time, an offer to refer is without effect.

Motion for costs in two actions, one by Ellen King and the other by John C. King against Robert W. Todd, as temporary administrator.

Booraem, Hamilton & Beckett, for plaintiffs.

Knevals & Perry, for defendants. ,

The question in this case is-whether the plaintiffs, who prevailed in their respective actions, should have costs or- not-. Sections- 1835 and 1836 of the Code - provide that- costs-shall- not be awarded against an executor or administrator except upon the two following conditions, which must concur : (i) plaintiff’s demand must be presented within the time limited by the published notice requiring creditors

p. 150

to present their claims, and (2) the payment of the claim has been unreasonabty resisted, or that the defendant has refused to refer. In my judgment, the plaintiffs have met neither of these conditions for, by the affidavits submitted, it appears that the time limited by the published notice expired on June 24, 1889, and. the plaintiffs did not present their claims in writing until September 19, 1889. Their failure to present their claims within the prescribed time is fatal to their right to recover costs (Clarkson v. Root, 18 Abb. N. C. 462 ; Horton v. Brown, 29 Hun, 654 ; Greene v. Day, 1 Dem. 45 ).

The plaintiffs seek to avoid this requirement of the code, upon the ground that the claims were verbally presented within the time limited, but I do not think a mere verbal notice is in any sense a compliance with the provisions" of the statute, which seem to require not only that a claim presented must be in writing, but if the executor or administrator so require it, must be accompanied by an affidavit, setting forth that it is “ justly due, that no payments have been made thereon, and that there are no offsets against the same.”

The claims not having been presented according to law within the time limited, of course the offer to refer was without effect, and cannot operate to the prejudice of the defendant.

There can be no contention in this case but that the temporary administrator was fully justified in resisting the claims, as they were of a somewhat extraordinary nature, although I think the jury arrived at a correct conclusion in regard to them.

The motion for costs, should, therefore, be denied but, under the circumstances, without costs.