Adams v. Brady — 22 N.Y.S. 466

Majority

p. 466

(67 Hun, 521.)

ADAMS v. BRADY.

(Supreme Court, General Term, Third Department

February 15, 1893.)

Headnote

Executors and Administrators—Allowance of Claims—Reference.

Where a person whose claim against an estate h^s been rejected by the administrator serves a written offer to refer the claim, and the administrator consents, and they agree on a referee, who is approved by the court, as provided by 4 Rev. St. (8th Ed.) pp. 2561, 2562, § 36, he waives his right to a jury trial; and where the referee’s report is set aside, the referee discharged, and a new trial granted, the court may, over his objection, appoint anew referee, as provided in section 37. Hasten v. Budington, 18 Hun, 105 , followed.

Appeal from special term, Albany county.

Louisa S. Adams, having presented to Anthony N. Brady, administrator of James N. Brady,- deceased, a claim against the estate, and the same having been rejected, a referee was agreed upon, as provided by statute, and a trial had before him. The report of the referee was set aside by the court, the referee discharged, a new trial granted, and a new referee appointed, and the administrator appeals.

Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Reilly & Hamilton, (Andrew Hamilton, of counsel,) for appellant.

Alden Chester, for respondent.

Plaintiff, having presented a claim against the estate o f James N. Brady, deceased, which was rejected by defendant, as administrator of the deceased, served on the latter a written offer to refer said claim, pursuant to th^ statute. The offer being accepted by defendant, and the parties, by another writing, having agreed on a reference to John T. Cook, and the surrogate of Albany county having duly approved of said referee, on filing said agreement to refer, and the

p. 467

approval of the surrogate, in the county clerk’s office of said county, an order entitled in the supreme court, referring the matter, as to said claim, to said Cook, was entered. The cause was afterwards tried before said referee, who found in favor of the claimant. A motion made by plaintiff at special term to confirm said report, and for judgment in favor of plaintiff, with costs, was denied, and the report set aside, on the ground that the referee had improperly stricken out evidence received on the trial after the final submission of the case. The referee was discharged, and a new trial granted before Hon. William L. Learned, who by said order was appointed sole referee to hear and determine the matter in controversy between said parties. Defendant objected to the appointment of a new referee, and gave notice that he elected to end the reference, and claimed a jury trial. It is now claimed by appellant that that portion of the order appointing a new referee is unauthorized; that the case is one where the defendant is entitled to a trial by jury; and that, by consenting to a reference to a particular referee, he did not waive his right to a jury trial,—said reference having fallen through. Presten v. Morrow, 66 N. Y. 452 . The general term of this district, in Hasten v. Budington, 18 Hun, 105 , determined that the doctrine laid down in Presten v. Morrow does not apply where there is a reference under the statute, by consent, on a claim against a deceased party, and that such consent is a waiver of a trial by jury. In the case last cited the provisions of 2 Rev. St. p. 89, §§ 36, 37, (which remain in force,)^[1] are considered; and the court held that after a controversy as to a claim against a deceased party had been referred by consent, pursuant to the above-quoted provisions of the Revised Statutes, it may be treated in the same manner as a case in which the court could direct a reference without consent; that said section 37 of the statute provides that, upon setting aside the report of a referee, another referee may be appointed by the court in place. See 2 Rev. St. p. 89, §§ 36, 37; 3 Rum. Pr. 298; Roe v. Boyle, 81 N. Y. at page 308. I think we are concluded by the decision of the general term of this district in Hasten v. Budington, which seems decisive of the question under consideration, and hence that the order should be affirmed, with costs. All concur.

1 4 Rev. St. (8th Ed.) pp. 2561, 2562, §§ 86, 37. Section 36 prbvides that, if the executor or administrator doubt the justice of any claim presented against the estate, he may enter into an agreement, in writing, with the claimant, to refer the matter in controversy to a disinterested person, to be approved by the surrogate, and upon filing such agreement and approval of the surrogate in the office of the clerk of the supreme court in the county in which the parties, or either of them, reside, a rule shall be entered by such clerk, either in vacation or term, referring the matter in controversy to the person so selected. Section 37 provides that the referee shall thereupon proceed to hear and determine the matter, and make his report thereon to the court in which the rule for his appointment shall have been entered; that the same proceeding shall be had, in all respects,—the referee shall have the same powers, be entitled to the same compensation, and subject to the same control,—as if the reference had been made in an action in which such court might, by law, direct a reference; and the court may set aside a report of the referee, or appoint another in his' place, and may confirm such report, and adjudge costs, as in actions against executors; and the judgment of the court thereupon shall be valid and effectual, in all respects, as if the same had been rendered in a suit commenced by the ordinary process.

Cases cited

Preston v. Morrow 66 N. Y. 452 N.Y. 1876-06-30 p. 467