Lesser v. Keller

Headnote

Pleadings—Answer.—Executor, etc.

An answer, in an action against an administrator for money loaned to decedent, does not state a defense, where it sets up neglect to present claim within the limited time without alleging a distribution of the assets of the estate.

The answer, after a denial on information and belief, continues as follows: “ Further answering, and fór a defense, this defendant alleges that subsequent to the appointment and qualification of this defendant as administratrix of the estate and effects of Raphael Keller, deceased, and on the 2d day of October, 1891, an order was duly made by the surrogate of the county of New York, pursuant to statute in such case made and provided, directing this defendant, as such administratrix, to publish a notice requiring creditors to present their claims to her at the office of Blumenstiel & Hirsch, No. 320 Broadway, New York city, on or before the 15th day of April, 1892, and further directing that such notice should be published once in each week for six months in the New York Law Journal and Uptown Press; that such notice was duly

published in the Hew York Law Journal and in the Uptown Press, as required by said order; and this defendant alleges that no demand or claim was presented to her by the plaintiff within the time limited by such notice so published; and that payment of said claim was not unreasonably resisted or neglected; and that this defendant did not refuse to refer the claim of this plaintiff as prescribed bylaw.’’ To this alleged “ further defense,” plaintiff demurs, on the ground that it is insufficient in law upon the face thereof.