#### Simon Adler, Plaintiff, v. Henry H. Davis et al., Executors, etc., Defendants.

(Supreme Court, New York Trial Term,

March, 1900.)

Decedents’ estates — Statute of Limitations — Costs on refusal to refer—Code C. P., § 1822.

The period, during which executors of a decedent are negotiating for a settlement with a claimant against the estate, is not to be deemed a part of the six months, after dispute or rejection, within which the claimant must sue or be barred by statute (Code C. P., 5 1822). Where executors neglect or refuse to refer such a claim they are chargeable with costs.

Action on note made by decedent. Defense, general denial and Statute of Limitations.

Scott *&*Treadwell, for plaintiff.

Edward Kaufmann, for defendants.

MoAdam, J.

The sole question reserved at the trial was as to the applicability of the short Statute of Limitations prescribed by section 1822 of the Code of Civil Procedure, which provides that where an executor or administrator “ disputes or rejects a claim against the estate of the decedent it shall be barred unless, within six months thereafter, action be brought thereon,” etc. See, also, Selover v. Coe, 63 N. Y. 438. The object of the statute was to enable executors and administrators to wind up estates without delay by barring out all creditors who do not present their claims or prosecute them within the prescribed time. It is highly penal in its character, is to be strictly construed, and to entitle an executor or administrator to the benefit thereof, the statute must in all essentials be complied with. Hoyt v. Bonnett, 50 N. Y. 538. The decedent died July 23, 1898, and publication for claims was commenced in November, 1898, requiring their presentation on or before June 2, 1899. The plaintiff’s claim was presented in December, 1898,. and was not formally rejected by the executors until the letter of June 2, 1899, marked “ Plaintiff’s Exhibit B.” See Hoyt v. Bon*48nett, *supra. The*executors carried on negotiations respecting the claim as late as ¡November 24, 1899, when, in answer to a communication from the claimant’s attorneys suggesting a reference and requesting the executors to send the names of any persons acceptable to them as referees, the attorneys for said executors replied, suggesting five names, the first of which the claimant promptly accepted. The claimant thereupon signed and acknowledged a stipulation that the matter be referred to the person so selected by the executors. This consent was sent to the attorneys for the executors, but was never acted upon by them, so that in consequence of their neglect no reference was ordered. To avoid the running of the statute, and one day before the. six months after the rejection of the claim, to wit, on December 1, 1899, the plaintiff brought the present action. These negotiations were an admission that the matter was still open for settlement, and if there was a prior rejection that it was not considered final and conclusive. Calanan v. McClure, 47 Barb. 206. There has been no settlement of the estate, and no distribution of the assets to any one, so that the executors have been in no possible manner prejudiced by what they now term unreasonable delay. See Matter of Mullon, 145 N. Y. 98; Erwin v. Loper, 43 id. 521; Baggott v. Boulger, 2 Duer, 160. The plaintiff is entitled to judgment for the amount claimed, and, as the defendants refused to refer, to the costs as well. Code, § 1836; Fort v. Gooding, 9 Barb. 388.

Judgment for plaintiff, with costs.