14 N.Y.S. 198 | N.Y. Sup. Ct. | 1891
The Stuyvesant Safe-Deposit Company alleges in its petition that the estate of the deceased is indebted to it on two certain judgments, recovered in the court of common pleas of the city and county of Yew York by one De Forrest Fox against the said Samuel Lyman in his life-time, and that the petitioner is the owner and holder of said judgments by virtue of assignments thereof duly made by said Fox to said petitioner, and is a creditor of said deceased. The answer to the petition is that the administratrix, more ■ than six months after letters of administration had been granted herein, under an order of the surrogate’s court duly advertised for claims once a week for the period of six months; that the proof of claim of the petitioner was presented to the administratrix, who disputed the same, and gave notice thereof to the petitioner, which notice contained an offer to refer said claim under the statute; that said offer has not been accepted; and that more than six months have expired since said claim was disputed; and that said claimant has not commenced an action for the recovery of said claim; wherefore the administratrix claims that the claimant is barred from maintaining this action. It is further alleged as a separate defense that Fox held certain collateral security belonging to the decedent, from the sale of which he realized a very large sum of money, for which neither he nor the petitioner has accounted, but which was applicable to the payment of said claim, if any existed. The surrogate ordered the administratrix to account. It was held by the court of appeals in McNulty v. Hurd, 72 N. Y. 518, that a judgment against a deceased person, although disputed or rejected by his personal representatives, need not be sued over in order to authorize a decree for its payment by the surrogate. If this be so, it is difficult to see how the claim arising upon the judgment can be barred by the statute of limitation, upon a refusal to refer. In McNulty's Case, Church, C. J., says: “We think that there is a distinction between judgments against the testator or intestate and other claims. A judgment is an adjudication of the rights of the parties in respect to the claim involved. It imports absolute verity. It cannot be disputed in the sense contemplated by the statute, any more than a" judgment against the ad