Opinion
November Term, 1900.
Frank W. Arnold, for the administrator, appellant.
M.J. Sneudaira, for the next of kin, appellants.
Michael J. Kelly, for the claimant, respondent.
With respect to claims presented to an executor or administrator three courses are open. He may, when the demand is made, formally or by acquiescence tacitly admit its justice and validity. He may reject the claim. Or, neither admitting nor rejecting it, he may consent as stated in section 1822 of the Code of Civil Procedure that "said claim may be heard and determined by him (the surrogate) upon the judicial settlement of the accounts of said executor or administrator." And where the claim is disputed or rejected, as provided in the same section, "the claimant must commence an action for the recovery thereof * * * within six months after the dispute or rejection."
Upon the accounting of the public administrator here, therefore, the question arose whether the claim of Catharine Shandley had been rejected, and if not, whether it was a valid one. To determine this issue, among others, the reference was ordered.
The contention of the appellants that the surrogate had no power to order the reference we regard as without merit for the reason that section 2546 of the Code of Civil Procedure expressly provides that "In a special proceeding * * * the surrogate may in his discretion appoint a referee to take and report to the surrogate the evidence upon the facts or upon a specific question of fact, to examine an account rendered, to hear and determine all questions arising upon the settlement of such an account which the surrogate has power to determine, and to make a report thereon, subject, however, to confirmation or modification by the surrogate."
It is reasoning in a circle to contend, because the necessary jurisdictional facts are not before the surrogate, that he has no power to act, when the purpose sought by the reference is to ascertain the facts upon which his determination of the jurisdictional and other questions must depend. As said in Matter of Pearsall (21 N.Y. St. Repr. 306): "The claim that the surrogate had no power to determine this question, even if that could be considered now, is clearly without foundation, as it is only upon the existence of certain facts that the jurisdiction of the surrogate can be exercised." So here, after the ascertainment of certain facts which the surrogate has undoubted power to obtain by means of a reference, he can determine, besides the others, the question of jurisdiction.
As shown by the order appealed from, the public administrator objected to a reference "on the ground that said claim was duly rejected * * * and that no action on said claim had been begun within six months after such service, or a consent filed with the surrogate that said claim be heard upon the judicial settlement of the accounts of said administrator within a like period, and that said claim is now barred by the Statute of Limitation."
This question as to the Statute of Limitations, together with the others raised by the notice which had been served by the administrator, that he doubted "the justness and validity of your claim," were the ones referred; and when the facts are found by the referee, the issues will again come before the surrogate for his determination. Thus it will be seen that the situation was one wherein the surrogate had power, under section 2546 of the Code of Civil Procedure, to appoint a referee.
We think, therefore, that the order should be affirmed, with ten dollars costs and disbursements.
VAN BRUNT, P.J., PATTERSON, INGRAHAM and HATCH, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.