#### George C. Carter, Resp’t, *v.*Emily P. Beckwith *et*al., Admrs, Applts.1

*(Court of Appeals,*

*Filed January*25, 1887.)

Executor and administrator — Presentation or claims — Costs, refusal of reference — Code Civ. Pro., § 1836.

The plaintiff presented a claim to the defendants who declined to pay the same or any part of it and at the same time positively refused to consent to a reference. *Held,*that plaintiff was entitled to costs under Code Civ. Pro., § 1836, although the amount claimed in the account as presented was larger than the amount claimed in the complaint and much larger than that recovered. That after such an unqualified refusal, the plaintiff was not bound to go further and make another distinct offer of reference before commencing his action in order to entitle him to costs.

Appeal from an order of the supreme court, general term, fourth department, affirming an order of the Onondaga county-special term awarding the plaintiff costs against the administrators.

*John*Lansing, for appl’t; *P. O. J. L>e Angelis,*for respt’s.

1

 Affirming 40 Hun, 635*mem.*

Earl,J.

In 1876 the defendants were appointed administrators of Richard Beckwith, deceased. Under an order of the surrogate, they published a notice to creditors to present their claims on or before July 25, 1877. The plaintiff, having a demand against the intestate for services rendered to him, and disbursements made for him, as an attorney, on the twenty-first of July, 1877, personally presented a claim for such services and disbursements to the administrators, amounting in the aggregate to §2,554.25, in the form of a bill of particulars. On the thirty-first of July, 1877, the attorney for the defendants wrote a letter, to the plaintiff, which was received by him, of which the following is a copy : “ Dear Sir : Your account again.st the estate of the late Mr. Beckwith has been shown to me by the administrators of Mr. Beckwith’s estate, and they direct me to inform you that they decline to pay the same, or any part of it. They also direct me to inform you that they will not consent to a reference, and, if you insist upon its payment, you must proceed immediately.” Subsequently the defendants offered to pay the plaintiff §110 upon his claim, and thereafter, on the tenth day of July, 1878, the plaintiff commenced an action to recover the sum of §1,412.63, for services rendered and money disbursed for the intestate. The action was put at issue, and subsequently referred by order of the court, and tried before a referee, who made his report, awarding the plaintiff §573.63, besides costs. Upon the reference evidence was given of the presentation of the account to the administrators as above mentioned, and that the plaintiff received *618the letter rejecting the claim. The referee made his certificate as follows: “ That said action was brought against Emily P. Beckwith, as administratrix, and Alexander Kanady and Samuel C. Kanady, as administrators, of the estate of Richard Beck-with, deceased, to recover a sum of money only, and that it appeared upon such trial that the plaintiff’s demand in said action was presented to said defendants before the expiration of the time limited by the notice published as prescribed by law, requiring creditors to present their claims, and that said defendants refused to ■ refer said claims, as prescribed by law.” Upon the affidavit of the plaintiff, and the referee’s certificate, the plaintiff made a motion for an order allowing him costs against the defendants. That motion was opposed upon the affidavit of defendants’ attorney, but was granted, and this appeal is from an order of the general term affirming that order.

We think the order is right. Section 1836 of the Code provides as follows ; “ When it appears, in a case specified in the last section, that the plaintiff’s demand was presented within the time limited by a notice published, as prescribed by law, requiring creditors to present their claims, and that the payment thereof was unreasonably resisted or neglected, or that the defendant refused to refer the claim, as prescribed by law, the court may award costs against"the executor or administrator, to be collected either out of his individual property, or out of the property of the decedent, as the court directs, having" reference to the facts which appeared upon the trial. Where the action is brought in the supreme court, or in a superior city court, the facts must be certified by the judge or referee before whom the trial took place.” We think,' within the meaning of that section, that the claim upon which the plaintiff recovered was presented to the administrators. It matters not that the amount claimed in the account as presented was larger than the amount claimed in the complaint, and much larger than that recovered. It was the same claim, for the same services and disbursements, and the administrators were in no way misled or prejudiced by the amount. *Field*v. Field, 77 N. Y. 294. The letter of the defendant’s attorney was a positive refusal to refer the claim, or to pay it, or any part of it. After such an unqualified refusal, the plaintiff was not bound, to go further, and make another distinct offer of reference before commencing his action, in order to entitle him to costs.

The order should be affirmed.

All concur.