#### Matter of the Estate of Johanna Rasch, Deceased.*

(Surrogate’s Court, New York County,

October, 1898.)

1. Surrogate’s Court — Detention, on final accounting, of moneys to meet disputed claim not yet in suit.

Where a claimant has made diligent but unsuccessful efforts to begin an action on a claim against the estate of a decedent and the administratrix of the latter has, by reason of her nonresidence, avoided service, the surrogate has power to direct; In a final decree on the accounting, that moneys be retained to cover the disputed claim — although there is no specific provision of law authorizing such a course.

8. Same — Attorneys not liable for costs under Code Civil Procedure, § 3878.

The provisions of section 3278 of the Code of Civil Procedure, making the plaintiffs’ attorney liable in certain cases for the defendants’ costs to the extent of 8100 until security for such costs has been given, do not apply to the court of the surrogate, or to attorneys who have filed therein objections to an account.

3. Same — Allowance to special guardian.

A special guardian for an infant party to a final accounting, whose claim has been rejected by an administratrix in her account, and who has filed exceptions thereto, is entitled to an allowance.

*460Exceptions to referee’s report.

Emile A. Hassey, for administratrix accounting.

Adolph Bloch and Frederick Dieffenbach, Jr., for contestants.

*

 Deceived too late for insertion in proper place.— LDep.

Arnold, S.

The exceptions to the referee’s report are overruled and report confirmed. Provision should be made in the decree for the retention by the administratrix of a sufficient sum, to be determined by the surrogate upon affidavits to be presented to him upon notice of settlement, to cover the amount of the respective claims of Came Heissner and Frieda FTussberger, including probable amount of costs which may be recovered thereon; such amount to be retained for a reasonable time, and until further order of this court is made in respect thereto, upon due application by a party interested therein. While the surrogate has no jurisdiction to pass upon the question as to whether the FTussberger claim is barred by the short Statute of Limitations, section 1822, Code of Civil Procedure, it clearly appears, from the evidence taken before the referee, that the claimant has made diligent effort to commence an action upon her claim, and has requested the administratrix to appear and defend the same, which she has refused to do, and that the latter has, by reason of her nonresidence, avoided service of summons. It is insisted by the claimant that the provisions of section 401, Code of Civil Procedure, apply; the administratrix claims that they do not. But the cases of Hayden v. Pierce, 144 N. Y. 512, and Titus v. Poole, 145 id. 424, apparently sustain the claimant’s contention. While this case does not come within the provisions-of section 2745 of the Code, it does not follow that the surrogate has not power to direct, upon entering final decree in an accounting proceeding, that moneys be retained to cover claims which are disputed, although no action may be pending thereon; and it has been the practice in this court to do so in proper cases, although there is no specific provision of law authorizing the same. See Matter of Giles, 1 Dem. 97; Matter of Callahan, 152 N. Y. 320; Matter of Randall, id. 521. The claimant should not be remediless by reason of the persistent refusal of the administratrix to allow the former to serve process upon her within the state, or voluntarily appear, so that the claim, which, so far as appears, is a meritorious one, may be passed upon and decided in the courts of this state. It does not appear whether the validity of the Heissner *461claim has been sustained in the action which seems to have been commenced thereon. If it has been, then proper direction for its payment may be inserted in the decree. "With respect to the claim of Mrs. Vetter, as administratrix of Remegius Rasch, I shall not mahe any directions deferring the distribution for the purpose of meeting some possible action which may be brought thereon, the claimant having made no effort, so far as it appears, to bring suit. The motion to charge the contestants with costs I shall deny. The claim that the attorney for Charles and William Kautzman, who filed objections, is liable for costs under section 3278, Code, could not in any event be sustained, for the reason that it is expressly provided by section 3347 of the Code, subdivision 13, that title 3, of which section 3278 is a part, is applicable only to the courts specified in subdivision 4 of section 3347. The special guardian appearing for Miss ETussberger is entitled to an allowance of costs, as his ward was made a party to and cited in this proceeding, and the account contains an allegation that she filed her claim with the administratrix, that the same was rejected, and that the claim is barred by the Statute of Limitations. She was justified in filing objections controverting the truth of such allegations, or any of them, and in submitting her interests to the protection of the court, and in presenting such evidence as might aid it in determining what, if any, relief she might be entitled to. 2sTo costs will be allowed to any of the other contestants. Decree may be submitted in accordance herewith upon notice of settlement to all parties appearing.

Decreed accordingly.