156 N.Y.S. 438 | N.Y. Sup. Ct. | 1915
This is an action by an administrator against the defendant to recover on a promissory note made by the defendant and payable to the order of plaintiff’s intestate. The defendant included in his answer a counterclaim for professional services as a physician, rendered by the defendant to plaintiff’s intestate. The plaintiff replied to the aforesaid counterclaim, setting forth the formal matters relating to the granting of letters of administration to the plaintiff, etc., and that on or about the 30th day of July, 1914, the defendant served an itemized statement of his claim for professional services (being the same claim alleged as a counterclaim), which was
The defendant claims, first, that the notice of rejecr tion of the claim in. question was insufficient under the provisions of section 2681, in that he did not offer to submit such claim for trial and determination on the judicial settlement of the accounts of the administrator; and, second, that the provisions of section 2681, Code of Civil Procedure, do not prevent the defendant from pleading his claim as a counterclaim under the provisions of section 506 of the Code of Civil Procedure.
The claim of the plaintiff is that he proceeded under the provisions of former section 1822 of the Code of Civil Procedure, and that the same was in force on the ninth of September, when he rejected the claim in question, and that under the provisions of said section last referred to the defendant is barred from maintaining any remedy whatever to enforce the claim.
The first question presented is whether former section 1822 was repealed by implication, as it may be conceded that it has not been expressly repealed (see 2 Heaton Surr. 1162), and to determine this a reference to former section 1822 and section 2681, enacted in chapter 443 of the Laws of 1914, which took effect September 1, 1914, is instructive. Section 1822 provided in substance that an executor or administrator might reject a claim presented to him, and that unless the claimant and the administrator filed with the surrogate a consent that the claim might be heard and determined by him upon the judicial settlement of the accounts of said executor or administrator the claimant must commence an action within six months
It seems to me that the conclusion upon the comparison of these two statutes is inevitable that former section 1822 is repealed by implication. First, the scope and the purpose of the two sections relate to pre
The provisions of the sections in question, while dealing with precisely the same subject matter, and having the same purpose, yet are, in many essentials, manifestly repugnant and tend to nullify each other. In the latter section, the Statute of Limitations is three months, and in the former six. If they are both in force, which is to apply? Under the provisions of section 1822, in the event of failure of both parties to consent to a hearing by the surrogate, and a failure of the claimant to begin his action within the time prescribed, he is forever barred from any remedy. By the provisions of section 2681, the claimant is only barred from his right of action, and in no event is barred from having his claim passed upon by the surrogate .upon the final judicial settlement.
For the foregoing reasons it seems to me that it was intended by the enactment of section 2681, chapter 443, of the Laws of 1914, to supersede and repeal the provisions of former section 1822. This being the case, it is unnecessary to pass upon the question whether the rejection served by the plaintiff herein is sufficient in form to comply with the provisions of section 2681 of the Code of Civil Procedure of 1914, because, if the construction herein contended for is right, even assuming that the notice of rejection is sufficient, the Laws of 1914 do not prevent the claimant from interposing as a counterclaim his claim, pursuant to the provisions of section 506 of the Code of Civil Procedure, which provides as follows: “ In an action brought by an executor or administrator, in his representative capacity, a demand against the dece
This is not a case of the legislature changing a remedy pending a proceeding to enforce a claim, because at the time of the rejection of the claim the statute of 1914 was in force. But, assuming that such was the case, neither the plaintiff’s nor the defendant’s substantive rights were affected thereby. The defendant’s right of action remained, and it was simply a matter of procedure, not affecting substantive rights. Sacheim v. Pigueron, 215 N. Y. 62.
There remains further the determination of the effect of the last clause of section 2681 of the Code of Civil Procedure of 1914, which reads as follows: “ But, in such case [where a written consent has not been filed by the claimant, consenting that said claim be heard and determined upon the judicial settlement of the accounts of said executor or administrator], the claim shall be tried and determined upon such judicial settlement,” whether the word “ shall ” is a word of compulsion, prohibiting any other method of enforcement. It seems to me that a more reasonable interpretation is that it is a word of permission, enlarging rather than restricting the claimant’s rights. But, assuming that the provision is mandatory, in my judgment it only applies to the case where the claimant assumes the initiative in prosecuting his claim, and does not in anywise deprive him of the right to interpose a counterclaim under section 506, when an executor or administrator becomes an actor. "Where language simply makes that legal and possible which
The demurrer is sustained, and permission is given to the plaintiff, within twenty days after entry of judgment herein, and service of notice thereof, to withdraw his reply to the counterclaim of the defendant, and plead over, upon payment of costs of the demurrer.
Demurrer sustained, with permission to withdraw reply and plead over, upon payment of costs.