Roberts v. Pike

Headnote

Costs—Offer to Refer Claim against Estate.

4 Rev. St. fif. Y. (8th Ed.) p. 2561, § 36, which provides for a reference “in writing” of a disputed claim against a decedent’s estate, does not require the offer of reference to be in writing, and where an executor rejects a paroi offer for such ref

erence, and the'claimant afterwards recovers a judgment for an amount exceeding $50, the latter is entitled to costs as of right, under Code Civil Proc. N. Y. § 3328, which provides that plaintiff is entitled to costs of course on the rendition of a judgment in his favor for $50 or more, where the complaint demands judgment for a sum of money only.

At chambers. . Action against defendant, executrix, etc., of Daniel J. Stock, deceased, for board and rooms alleged to have been furnished testator’s wife for a period of three yéars. Defendant answered that testator and his wife had lived separate and apart during all this time, according to an agreement by which testator was to furnish her specified sums for her support; that he had fulfilled his agreement; and that plaintiff had knowledge thereof. As a further defense, defendant alleged that testator’s wife had deserted him, and refused to ljve with him. Defendant also pleaded the general denial. At, the trial, there was a verdict for $2,340 in plaintiff’s favor. Plaintiff now moves for costs and an extra allowance, and presents in support of such motion the affidavit of his attorney, to the effect that, after the presentation of the claim to defendant’s attorneys, and-its rejection by them, he orally offered to refer the matter, and that such offer was then refused. 4 Rev. St. N. Y. (8th Ed.) p. 2561, § 36, provides for the reference, in writing, of disputed claims against a decedent’s estate. Code Civil Proc. N. Y. § 3228, provides that plaintiff is entitled to costs of course on the rendition of final judgment for $50 or more in his favor, where the complaint demands judgment for a sum of money only.