Opinion
November, 1905.
Mitchell May [ Samuel E. Klein with him on the brief], for the appellant.
R.M. Cahoone, for the respondent.
I am of opinion that the allowance of the claim was error. Certainly the oral communication of the executor to Mr. O'Mally, then the attorney for the claimant, does not make for the allowance of the claim by the executor. If we disregard that communication it then appears that the executor made no sign after the claim was presented until he filed his accounts wherein he scheduled the claim as disputed. On the hearing of the objections filed by the claimant the executor stated in open court that he would enter into a written stipulation submitting the merits of the claim to the surrogate or permitting the same to be otherwise tried. But the learned surrogate determined that the claim had never been rejected, and, therefore, it was allowed. While the surrogate had jurisdiction to pass upon that question ( Matter of Miles, 170 N.Y. 75), I think that the determination was wrong. Aside from the dealings with Mr. O'Mally (which could not in any event avail the claimant), such determination was necessarily based upon the failure of the executor to make any sign during the period intervening the filing of the claim and the filing of the accounts, and the disposition of the claim in the account and the attitude of the executor upon the hearing of the claimant's objections to the account. But, first, the silence of the executor after the filing of the claim did not conclude him. The doctrine that the lapse of a reasonable time without objection made, transforms an account rendered into an account stated, has a much more restricted application when the claimant deals with an executor, and the Court of Appeals refused to apply it when similar inaction of an executor followed the presentation of a claim, observing also that the creditor must see to it that the claim is admitted or allowed or else commence an action. ( Schutz v. Morette, 146 N.Y. 137. See, too, Matter of Callahan, 152 id. 320, 325.) Second, as to the account itself, it appears that the executor scheduled this claim as disputed. And, third, on the hearing of the objections the attitude of the executor was that of a disputant or rejector of the claim.
I am far from prepared to hold that the communication of the executor to Mr. O'Mally, if established, was not sufficient to show that the claim was then disputed or rejected. For if Mr. O'Mally as attorney for the claimant had authority to present the claim, which is not now questioned, then I think that such authority, in the absence of aught to the contrary, justified the executor in assuming that his decision as to the claim would be communicated to the attorney. ( Lockwood v. Dillenbeck, 104 App. Div. 71.) And I know of no principle or rule, and am cited to none, which requires that the decision of the executor should be in writing, or in any particular form. (Jessup Surr. Pr. [2d ed.] 1033.)
The decree so far as appealed from must be set aside, with costs.
HIRSCHBERG, P.J., BARTLETT, RICH and MILLER, JJ., concurred.
Decree of the Surrogate's Court of Kings county so far as appealed from reversed, with costs.