Healy v. Malcolm — 75 A.D. 422

Majority

p. 422

Thomas A. Healy, Respondent, v. Janet T. Malcolm, as Executrix, etc., of James F. Malcolm, Deceased, Appellant.

Headnote

Disputed claim, against an estate — costs not allowed where the 'claimant on the trial consents to.a material reduction.

"Where, upon the trial of an action upon a disputed claim against an estate, the plaintiff voluntarily consents to a material reduction of his claim, it cannot be said that the defense was unreasonable, and a certificate made by the trial justice under section 1836 of the Code of Civil Procedure, to the effect that payment of the claim had been unreasonably resisted and neglected, will be set aside.

Appeal by 'the defendant, Janet T. Malcolm, as executrix, etc., of James F. Malcolm, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1902, denying the defendant’s motion to set aside a certificate made by the trial justice under the provisions of section 1836 of the Code of Civil Procedure upon the ground that the payment of the plaintiff’s claim had been unreasonably resisted and neglected, and the taxation of costs thereunder.

Edwa/rd W. 8. Johnston for the appellant.

Philip M. Brett for the respondent.

We think that .the motion to set aside the certificate should have been granted. It appears by the admission of the plaintiff that his claim was materially reduced upon, the trial. It is no answer to this suggestion to say that upon the trial the plaintiff voluntarily consented to a reduction of his claim. It was necessary for the executrix to defend the claim, and that such defense was .not unreasonable was established by the fact that the plaintiff was compelled to reduce the amount of his claim upon the trial. We think that the policy of the law is that estates should not be mulcted in costs where exorbitant demands are made upon. them and where a defense results in a material reduction of the claim. The defense in such a case cannot possibly be deemed unreasonable.

p. 423

The order appealed from should be reversed, with ten dollars •costs and disbursements, and the motion to set aside the certificate and taxation granted, with ten dollars costs.

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

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.