In re Kipp — 75 N.Y.S. 589

Majority

p. 589

(70 App. Div. 567.)

In re KIPP.

(Supreme Court, Appellate Division, First Department.

April 11, 1902.)

Headnote

1. Claims against Estates—Funeral Expenses—Procedure for Collection.

Under Code Civ. Proc. § 2727, permitting a creditor of an estate, or one interested in it, to procure the settlement of his claim or interest, and section 2729, as amended by Laws 1901, c. 293, directing an administrator to first pay the intestate’s funeral expenses, prescribing the manner of their collection if not paid within a certain time, and re

p. 590

quiring the surrogate court to take proof as to the reasonableness of the claim, a claimant for funeral expenses, proceeding for their collection after the taking effect of the amendment, though they were incurred before that time, must adopt the procedure prescribed in the amendment, which merely regulates the proceedings for the collection of such claims.

2. Same—Law Prescribing Procedure—Constitutionality—Appeal—Question not Raised in Court Below.

The court, on the appeal from an order referring a claim for an intestate’s funeral expenses, pursuant to Laws 1901, c. 293, will not consider the constitutionality of such law, the question not having been raised in the court below.

Appeal from surrogate’s, court, New York county.

Proceedings in the surrogate court by Herman H. Kipp against Henry B. Wesselman, temporary administrator of Charlotte Miller, deceased, for an order directing the payment of the intestate’s funeral expenses. From an order referring the matter to a referee to take proof of the claim, the administrator appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and PATTERSON, O’BRIEN, and LAUGHLIN, JJ.

B. L. Kraus, for appellant.

P. Cook, for 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 Eaws 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, 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 claimed that chapter 293 of the Eaws of 1901, constituting subdivision 3 of section 2729 of the Code, is in violation of the constitutional provision that trial by jury in all cases in which it has been heretofore used shall remain inviolate forever. 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

p. 591

disposition of the case, as provided for by subdivision 3 of section 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 $10 costs and disbursements. All concur.