Johnson v. Myers — 3 N.Y. St. Rep. 655

Majority

p. 655

Angeline C. Johnson, adm’x, Resp’t, v. Maria J. Myers, ex’rx, App’lt.^[1]

(Court of Appeals,

Filed November 23, 1886.)

Headnote

1. Executors and administrators—Claim against estate—Oosts—Additional ALLOWANCE.

Although the claim of a creditor against an estate may have been duly exhibited and properly presented to the testator’s executor before suit brought, and the defendant was defeated in the end, yet if the defense interposed was reasonable and proper, costs will not be awarded to the plaintiff.

3. Appeals—When conclusions op lower court as to matters oe pact

POLLOWED BY COURT OP APPEALS.

As a general rule, where a matter is before the court of appeals, the ground of appeal and defense being disputed matters of fact, the court will as to those facts follow the conclusion of the court below, unless there is some obvious and sufficient reason for doing otherwise; but it appearing in this case that payment was not unreasonably resisted or refused, the order granting costs and additional allowance "will be reversed.

Appeal from an order of supreme court, general term, fifth department, affirming an order, granting costs and an additional allowance to plaintiff in an action against an executrix on a claim for services rendered to defendant’s testator in his lifetime.

W. O. Tracy for app’lt; Chas. A. Hanley for resp’t.

An order was made in this case granting costs to plaintiff and an additional allowance. It is resisted, upon this appeal, on the ground that the plaintiff’s demand was not presented to the executrix for payment before the commencement of the action, and that such payment was not unreasonably resisted or refused. Both questions turn upon disputed facts, as to which it is the general rule of this court to follow the conclusions of the courts below, unless for some very obvious and sufficient reasons. Field v. Field, 77 N. Y. 294 . The statute (3 Rev. St. [5th Ed.] 175, §§ 39, 40) authorizes publication of a notice to creditors, “requiring all persons having claims against the deceased to exhibit the same, with the vouchers thereof, to. such executor or administrator,” etc., and allows the latter, upon such presentation, to require production of vouchers and an affidavit of the claimant.

The proofs on the part of the plaintiff show that her claims with the books and vouchers on which they rested, were fully “exhibited” to the authorized agent of the executrix before the commencement of the action, and were examined and rejected by the assertion of counter-claims sufficient to extinguish them, and all ultimate liability denied. This fact is no further disputed than by an affidavit of the defendant’s attorney that no “formal claim” was ever made, though he admits ‘ ‘ informal negotiations for a settlement.” But while the courts below were justified in holding that the plaintiff’s claim was duly exhibited and properly presented, the examinations we have made of the facts in controversy very strongly impress us with the conviction that the defense of this action was reasonable and proper; and, while the defendant estate was unsuccessful in the end, there was abundant reason, in the complicated nature of the accounts, in the great amount of business transacted, and in the supposed and actual existence of grave counter-claims, to justify the defense actually made, and prevent us from holding it to have been unreasonable. Judgment was demanded for more than $60,000, with a large amount of interest. Judgment was rendered for a sum very materially less, and still further reduced by a deduction of the general term of more than $10,000. We discover no trace of bad faith in the defense interposed, but much to justify the inquiry and examination which it compelled.

For this reason we think costs should not have been awarded, and we therefore reverse the order appealed from.

All concur.

Cases cited

Field v. Field 77 N. Y. 294 N.Y. 1879-05-20 p. 655