131 N.Y.S. 857 | N.Y. App. Div. | 1911
' Appeal from an order denying plaintiff’s motion for judgment upon the pleadings, which consist of a complaint and a demurrer for general insufficiency.
The complaint alleges,' after a statement of plaintiff’s incorporation and capacity to sue, that on or about December 15, 1908, one Frederick Meyer duly made, executed and delivered to one Louis Kessel' his five promissory notes in the sum of $1,200 each, with interest, payable on the fifteenth day of December in each year from 1914 to 1918 inclusive; that thereafter said Kessel indorsed and delivered the notes to-plaintiff who now owns and holds them; that said Frederick Meyer, the maker of the notes, died intestate on Sep-. tember" 23, 1909, and that thereafter letters of administration upon his estate were duly issued • to defendants, who duly qualified and still are and remain such administrators; that the claim arising upon said notes was duly presented to said defendants who' refused and rejected it. ' All of these facts are of course admitted by the demurrer. The prayer for relief is that the notes be declared good and ■ valid • instruments, and that a sufficient amount of the property of the decedent be set aside to meet and pay said notes as they respectively mature.
The plaintiff finds itself in a peculiar position, to which the Code remedies for determining and enforcing claims against a decedent’s estate are-apparently inapplicable. The remedies provided by the Code of Civil Procedure' for the enforcement of a claim by the claimant are threefold: First. The,claimant may accept the offer of the executor or administrator, if made, to refer the claim to a referee (Code Civ. Proc. § 2718), but this is of no avail to the plaintiff since no offer has been made by the administrators. Second. The claimant may within six months after the rejection of the claim, file a written consent with the surrogate that the claim be heard and determined by him upon the settlement of the account of the executor or administrator, and and if a similar consent is filed by the executor or administrator, the surrogate acquires jurisdiction to hear and
Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.
Order reversed, with ten dollars costs and disbursement's, and motion granted, with ten dollars costs, with leave to defendant to withdraw demurrer and answer on payment of costs.