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Jackson v. Bryne

130 A.D. 364 Court First Department, Decision date 1909-02-05 English

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p. 364
Lily I. Jackson and Others, as Ancillary Executors, etc., of John J. Jackson, Deceased, and Reese Blizzard, Respondents, v. Elizabeth M. Byrne and Others, as Executors, etc., of John Byrne, Deceased, Appellants.
First Department,
February 5, 1909.

Headnote

Executor and administrator — reference of claim against estate — form of judgment — interest.
Where a claim against an estate was filed in the names of two persons, but only one of them established his title to the claim before a referee appointed under section 3718 of the Code of Civil Procedure, the judgment should not be in favor of both claimants, but only in favor of the one establishing the claim.
Interest on an unliquidated claim for legal servicés rendered to the decedent should only be allowed from the time it was presented, to the executors.
Appeal by the defendants, Elizabeth M. Byrne and others, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New Tork on the 26th day of March, 1908, upon the report of a referee appointed by consent and with the approval of the surrogate, pursuant to the provisions of section 2718 of the Code of Civil Procedure, to hear, try and determine a claim presented by the plaintiffs.
Edward J. McGuire, for the appellants.
Richard J. Donovan [Herbert D. Cohen with him on the brief]! for the respondents.

The evidence in this case sustains the finding of the learned referee that the decedent Jackson performed legal services for the decedent Byrne at the instance and request of the latter, which were reasonably worth the amount for which judgment has been entered. The claim was filed jointly by Jackson and by Blizzard, another member of the bar of West Virginia, who was employed by Jackson but apparently without authority from the decedent. Upon the trial no claim was made by Blizzard, and no evidence was presented tending to show any contract between him and the decedent. The learned referee on finding these facts should, we think, have

p. 365
adjudged that the claim in so far as the same was filed by or in behalf of Blizzard, was not established and should have directed the entry of judgment in behalf of Jackson only. By an oversight, evidently, the judgment for the value of the services rendered by Jackson only, has been entered in favor of Blizzard also.

Interest has been erroneously allowed on Jackson’s claim from the date of the death of his client, instead of from the date his claim was presented to the executors, which appears to be the rule governing interest on unliquidated claims against an estate. (De Carricarti v. Blanco, 121 N. Y. 230 .)

It follows, therefore, that the conclusions of law should be modified by striking out the words “and Beese Blizzard,” and by modifying the ¡provisions thereof with respect to interest so that it will read “ from December 1, 1905,” and inserting in the conclusions of law a provision adjudicating that no claim has been established in behalf of Blizzard and that his claim be dismissed, and that the judgment be likewise modified and as thus modified affirmed, with costs payable out of the estate of the decedent Byrne.

Present — Patterson, P. J., Ingraham, Laughlin, Clarke and Scott, JJ.

Judgment modified as directed in opinion, and as modified affirmed, with costs payable out of the estate of the decedent Byrne. Settle order on notice.

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