117 Misc. 795 | N.Y. Sup. Ct. | 1921
This action is properly brought. The answer presents no issue. There is no general denial and the defenses set up are not valid. The plaintiff had the right to sue the administratrix without having previously filed his claim with her as such. There is no restriction upon the right to commence an action upon a contract against an administrator where the claim has not been submitted to the administrator. Decedent Estate Law, §§ 116, 117. The general rule is that unless there is some statutory requirement to the contrary, the presentation of a claim to the personal representative of a decedent is not a condition precedent to the commencement of an action against the executor or administrator upon such claim. 24 C. J. § 1836, p. 744. The only restriction in this state is where a claim has been presented to the administrator in which case the claimant is required to submit the claim to the jurisdiction of the surrogate unless he sues on it within three months after its rejection or if no part of the debt is then due, within two months after a part thereof becomes due. Code Civ. Pro. § 2681. Prior to 1895 the surrogate had no jurisdiction to try or determine disputed claims against an estate. Heaton Surrogates (3d ed.), If 224, p. 1165. So that where the claim was disputed, even in a case where the claim was presented to the executor or administrator, the claimant was required to sue on the claim in a court having jurisdiction. The Code was amended by chapter 595 of the Laws of 1895 giving the surrogate jurisdiction of disputed claims where the parties filed a written consent to have the claim determined by him upon the judicial settlement, and by the revision of 1914 the authority of the surro
Judgment for plaintiff.
