Ruama Clark, Adm’rx, Resp’t, v. Susan M. Corwin et al., Ex’rs, et al., App’lts.(Supreme Court, General Term, Second Department,Headnote
Costs—Decedent’s estates—Refusal to bbfeb.A claim upon a note was rejected by the executor on the ground that the note was a forgery, and upon a suggestion of a reference he replied that he could prove the forgery before any court or jury, and that it had better take the regular course in law. Held, a sufficient refusal to refer, and that the holder of the note upon recovering in an action brought against the executor upon said note was entitled to costs.
Appeal from order allowing plaintiff to tax costs as in an ordinary action.
The action is brought upon a note made by defendant Wheeler and James Corwin. After the death of said Corwin a claim upon said note was presented to defendant Moble, one of his executors, who rejected the same without any offer to refer. An offer was then made to him to compromise the claim, and a reference was suggested, to which he replied: “ That the signatures of Corwin to the note was a forgery, and he could establish it before any court or jury, and that if plaintiff insisted upon the payment of any portion of it, that it had better take the regular course in law ; that the estate was abundantly able to pay, and if beaten, could pay the whole as well as a part of said note.” The case has been twice tried, the plaintiff recovering in each instance.
Gilbert O. Hulse, for app’lts; W. F. O'Neill, for resp’t.
—This is an appeal from an order allowing the plaintiff to tax costs in this action against the executors.
The action was upon a promissory note, and the defense was that the name of James Corwin which appeared upon the note was a forgery. Corwin is dead and his executors were made defendants m the action with Wheeler, the other maker, who is alive.
The claim was presented to the counsel for the executors and rejected, and sufficient was stated by him at the time to constitute a refusal to refer.
It is unnecessary to determine whether the claim was unreasonably resisted as the refusal to refer was sufficient to justify the imposition of costs.
The order should, therefore, be affirmed, with ten dollars costs and disbursements.
Pratt, J., concurs; Barnard, P. J., not sitting.