51 A.D.2d 856 | N.Y. App. Div. | 1976
Order unanimously affirmed, with costs to claimant payable out of the estate. Memorandum: In June, 1970 claimant-respondent filed its claim with appellant, about four months after letters testamentary were issued to her as executrix of the will of William P. Horton, deceased. No rejection or admission of the claim having been made by the executrix (see SCPA 1806), in August, 1974 claimant commenced an action against her in the Supreme Court to collect it (see SCPA 1810). The executrix appeared in the action. Claimant’s counsel then learned that in June, 1970 claimant had filed a claim against executrix for this same indebtedness, and they decided that the proper course was to discontinue the Supreme Court action and petition the Surrogate for judicial settlement of the accounts of the executrix of the estate. Accordingly, in November, 1974 claimant filed such a petition and had citation issued thereon, and claimant’s counsel sent the citation with stipulation of discontinuance of the Supreme Court action to counsel for the executrix, explaining claimant’s intent of pursuing the claim in Surrogate’s Court. The stipulation contained the words, "discontinued on the merits”. In an exchange of letters concerning the stipulation, executrix’ counsel did not