17 N.Y.S. 575 | N.Y. Sup. Ct. | 1892
The appellant contends that the court erred in holding that the short statute of limitations was a bar to this action, and in dismissing the complaint upon that ground. He contends that, in order to set the short statute of limitations running, it was necessary that the executor should publish a notice requiring the presentation of claims; that such presentation should be in pursuance thereof; and that the statute does not apply where such notice has not been published. Under the Revised Statutes, it was held that this limitation wras applicable only to cases where the presentation and rejection of the claim occurred after the publication of notice requiring creditors to present their claims against the estate. Whitmore v. Foose, 1 Denio,
The appellant also contends that, if the statute commenced to run upon the rejection of his claim, the respondent has waived his right to insist upon the bar thereof by reason of the oral negotiations which took place between the attorneys for the parties. In other words, he claims that the appellant was estopped by the conduct of her attorney from setting up the bar of this statute. The most that could possibly be claimed to be established by the evidence in this case is that, after the appellant’s claim was rejected by the respondent, there were oral negotiations between the attorneys for the parties, whereby the appellant’s attorney understood that the claim would be referred. A fair construction of the evidence would hardly justify even that claim. The evidence shows that the appellant’s attorney was willing to refer and discussed the matter with the respondent’s attorney, who agreed to see his client as to the matter, but failed to do so until more than six months had elapsed, and until after the appellant had offered in writing to refer the claim, when the respondent’s attorney refused to refer. We find nothing in the cases cited by the appellant that would justify us in holding that what occurred between the attorneys of the parties amounted to a waiver, or estopped the respondent from insisting upon the short statute of limitations. A mere offer to refer by an executor after an unqualified refusal to pay will not waive the statute. Bank v. Speight, 47 N. Y. 668; Cornes v. Wilkin, 79 N. Y. 129. In this case there is no doubt but the appellant’s claim was positively rejected by the respondent more than six months before this action was commenced, and it must have been so understood by the appellant. There was talk between the attorneys about a referee, but no agreement was consummated.
Even if there was an understanding that the matter should be referred, there was no agreement to that effect, either oral or in writing. The statute
Hardin, P. J., concurred. Her win, J., dissented.
Code Civil Proc. § 1822, provides: “Where an executor or administrator disputes or rejects a claim against the estate of the decedent, exhibited to him either before or after the commencement of the publication of a notice requiring the presentation of claims as prescribed by law, unless the claim is preferred as prescribed by law, the claimant must commence an action for the recovery thereof, against the executor or administrator, within six months after the dispute or rejection, ” etc.
2 Rev. St. p. 88, § 36, provides: “If the executor or administrator doubt the justice of any claim so presented, he may enter into an agreement, in writing, with the claimant, to refer the matter, ” etc.