273 A.D. 858 | N.Y. App. Div. | 1948
Order denying defendants’ motion to dismiss the complaint under subdivision 6 of rule 107 of the Rules of Civil Practice, and section 211 of the Surrogate’s Court Act, affirmed, with $10 costs and disbursements, with leave to defendants to answer within ten days from the entry of the order hereon. The action is for services rendered, and the complaint, in one cause of action, alleges that the services were rendered to defendants’ testator during his lifetime and continued, at the request of defendants, executors of the estate, after his death. In our opinion, section 211 does not apply to a claim against executors individually, upon their independent contract, and which is not a claim against the deceased. (Surrogate’s Ct. Act, § 207.) Nor has it been established, on this motion, that plaintiff made an election that his claim be treated as one against the deceased. Lewis, P. J., Cars-well, Johnston, Adel and Wenzel, JJ., concur.