In re the Petition of Kipp — 70 A.D. 567

Majority

p. 567

In the Matter of the Petition of Herman H. Kipp, Respondent, for an Order Directing the Payment of Funeral Expenses by Henry B. Wesselman, Temporary Administrator, etc., of Charlotte Miller, Deceased, Appellant.

Headnote

Reference of a claim, for funeral expenses—subdivision 3 of section 3739 of the Code of Ovoil Procedure applies to claims previously accruing — an objection to the constitutionality of an act is not first mailable upon appeal.

Subdivision 3 of section 3739 of the Code of Civil Procedure, added by chapter 393 of the Laws of 1901, relating to the collection of a claim for the funeral expenses of a decedent, is a mere regulation of a form of procedure and applies to a claim which accrued before the subdivision became operative.

The objection that such subdivision violates the constitutional provision that trial by jury in all cases in which it has heretofore been used shall remain inviolate forever, is not available for the first time upon an appeal from an order of reference made pursuant to such subdivision.

Appeal by Henry B. Wesselman, temporary administrator, etc., of Charlotte Miller, deceased, from an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 26th day of December, 1901, referring the matter to .a referee to take proof as to the claim of the petitioner and to report the same to the court with his opinion thereon.

Bertram L. Kraus, for the appellant.

Peter Cook, for the respondent.

The services were performed and the materials furnished for which this claim is made on or about the 19th of March, 1901, and the claim was presented to the temporary administrator on the 17th of June, 1901; and, pursuant to the authority conferred by section 2729 of the Code of Civil Procedure, as amended by chapter 293 of the Laws of 1901, which went into effect September 1, 1901, the Surrogate’s Court on the 26th of December, 1901, made the order in question.

It is objected by the appellant that the holder of a claim for funeral expenses is not a creditor, nor a person interested in the estate,

p. 568

within the- meaning of. those terms as used in section 2727 of the Code; and that as.the amendment to section -2729, constituting subdivision 3 thereof, went into effect on September 1, 1901, it is not applicable to the matter at bar, as the claim accrued before the amendment became operative. It seems to be sufficient to say upon this point that the amendment of. section 2729 was a mere regulation. of procedure; and it is a well-settled rule that no matter when a claim may mature, the form of procedure provided for by the law for its collection at the time the proceeding for collection is commenced must be the one adopted, and consequently the claimant was required, at the time at which he presented his application, to proceed in the manner then provided by the law for enforcing its collection.

. It is further urged that chapter 293 of the Laws of 1901, constisuting subdivision 3 of section 2729 of the Code, is in violation of the constitutional provision that trial by jury in all eases in which it has been heretofore used shall remain inviolate forever. (Art. 1, § 2.) It is not necessary to discuss this question upon this application, for the reason that it does not appear that any such objection was taken-in the court below. If the party desired to avail himself of an objection of this kind, he was bound to do so before the court entered upon the disposition of the case as provided for by subdivision 3 of sec-, tion 2729. It is too late to raise that question for the first time upon appeal from the order which was made pursuant to the provisions of that section.

The order should be affirmed, with ten dollars costs and disbursements.

Patterson, O’Brien and Laughlin, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.