Faburn v. Dimon — 20 A.D. 529

Majority

p. 529

Sarah Faburn, Respondent, v. Orville P. Dimon, as Administrator, etc., of Elijah Ruger, Deceased, Appellant.

Headnote

Statutory reference of a claim rejected by an administrate!'—hew tits defense of the Statute of Limitations must be presented,.

While it may not be necessary that an administrator state in the rejection of a-claim by him or in a stipulation to refer the same that the claim is barred by the Statute of Limitations, yet where no such defense is made or suggested upon the trial and no request is made to the referee to pass upon the question and no exceptions are filed to the referee’s report, such defense cannot be presented in the first instance on an appeal.

■Appeal .by the defendant, Orville P. Dimon, as administrator, etc., of Elijah Eager, deceased, from a judgment of the Supreme Court in favor of the .plaintiff, entered in the office óf the clerk of the county of Chemung on- the 9th day of July, 1897, upon the report of a referee.

This was a statutory reference of a claim for services alleged to have been rendered by the plaintiff to the defendant’s intestate while in the latter’s employ.

Francis E. Baldwin, for the appellant.

Sherman Moreland, for the respondent.

. A careful examination, of the evidence shows that there is such ■ • a conflict over the questions of fact in this case that we are not disposed to interfere with the conclusion to which the referee has arrived concerning them. Nor do we find any error in the referee’s rulings sufficient to warrant a reversal of the judgment. .

As to the claim that a portion of the demand is barred by the Statute of Limitations, it is sufficient to say that no such claim was made upon the trial, or at any time prior to this appeal. The record does not disclose'that such a defense was interposed or ever in any way suggested. No exceptions are filed to the findings of the referee. ■ No requests made to him to pass upon that question. No exceptions taken to the admission of evidence on that ground.

While we do not hold that it is necessary to state such defense in the rejection of the claim, or in the stipulation to refer, yet we think that it should in some form be taken either before or upon the trial, and that it cannot be raised for the first time after judgment and upon appeal.

We conclude, therefore, that the judgment should be affirmed, with costs.

All- concurred.

Judgment affirmed, with costs. .