(77 Hun, 203.)

#### In re STEVENSON’S ESTATE. In re COHEN.

(Supreme Court, General Term, First Department.

April 13, 1894.)

'■1. Executors and Administrators—Claims against Estate.

A petition to compel executors to account, and to pay petitioner’s claim for legal services against the estate, alleged that the claim had been presented, and was never rejected, and is a liquidated and undisputed debt against the estate. The executors denied that petitioner did any work of the value stated, or that the claim was admitted by them, and alleged that it was duly rejected 'by them. Petitioner filed an affidavit in reply, stating that he had requested one of the executors to give him a check for the amount of the claim, and that such executor stated that in his opinion the bill was too large. *-Held,*that such petition, answer, and affidavit did not justify the conclusion that the claim by acquiescence of the executors had become a liquidated and undisputed debt. ■

■■2. Same—Power of Surrogate to Dismiss Petition.

Under Code Civ. Proc. § 2727, providing that on presentation of petition for a judicial settlement of an executor’s accounts a citation must be issued accordingly, except that in certain cases the surrogate may decline to entertain the petition in his discretion, the surrogate’s discretion is not exhausted by the issuance of a citation, but he may thereafter dismiss the proceeding.

Appeal from surrogate’s court, New York county.

Application by Maurice S. Cohen for a judicial settlement of the ■accounts of Sewanee M. Stevenson, James D. Smith, and James McClenahan, executors of the will of David Stevenson, deceased. 'The application was denied, and petitioner appeals. Affirmed.

*363The respondents’ testator died in 1892, and letters testamentary were issued October 31st of that year, on his estate, to the respondents. Prior to December 26, 1892, the appellant presented to them an account for legal services rendered and disbursements made by him for the testator, amounting to $1,523.63. On the 28th of December, 1892, the appellant, at the request of the respondents, duly verified his claim, pursuant to section 2718 of the Code of Civil Procedure. The respondents published a notice to creditors, pursuant to the section last cited, to present their claims on or before November 13, 1893. On the 18th of December, 1893, the appellant filed a petition in the surrogate’s court alleging that the testator was indebted to the petitioner in the sum of $1,523.63, with interest from October 5, 1892. It was also alleged that the claim had been presented more than 11 months before the date of the petition, “and the same was never rejected, and the same is a liquidated and undisputed debt against the estate.” The petition ends with the following prayer: That the “executors render, and cause to be judicially settled, their accounts as such executors of David Stevenson, deceased, and that a citation may be issued, requiring the said executors to appear in this court and show cause why the said claims should not be paid to your petitioner, and why they should not render and file their said accounts, and cause the same to be judicially settled.” On the same day a citation was issued, requiring the respondents, at a date and place mentioned, “then and there to show cause why you, and each of you, should not render your accounts as the executors of David Stevenson, deceased, and why said accounts should not be judicially settled, and why the claim of the petitioner herein should not be paid.” Upon the return of the citation the respondents appeared, and filed an answer containing the following denial and allegation: “They deny that the firm of Cohen & McWilliams, of which firm said claimant is the surviving partner, did and performed work, labor, and services for the said David Stevenson, in his lifetime, to the amount, and of the fair and reasonable value, of fifteen hundred and twenty-three 63/100 dollars; and they further deny that said claim was ever conceded or admitted by them as such executors, but, on the contrary, they allege that, when said claim was presented, same was duly rejected by titem.” To this answer the appellant was permitted to file an affidavit in reply, which was filed and verified January 8, 1894, and contains the following statement: “That on or about January 19, 1893, deponent had a personal interview with said McClenahan, and then requested him to give deponent a check for the amount of said claim, to wit, $1,523.63; that said McClenahan then stated to deponent that, in his opinion, the said bill was too large.” On the 23d of January, 1894, an order was entered on the petition, affidavit, and reply, denying the petitioner’s application.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

Rastus S. Ransom, for appellant.

William G. McCrea, for respondents.

FOLLETT, J.

The purpose of the appellant was evidently to file a petition which would authorize a decree under sections 2722 and 2725, or under sections 2726 and 2727, of the Code of Civil Procedure. It is not necessary now to determine whether the remedies provided by these sections can be united and prosecuted in a single proceeding. Section 2722 provides;

“In either of the following cases a petition may be presented to the surrogate’s court, praying for a decree directing an executor or administrator to pay the petitioner’s claim, and that he be cited to show cause why such a decree should not be made: (1) By a creditor, for the payment of a debt, or of its just proportional part, at any time after six months have expired since letters were granted. * * * On the presentation of such petition, the surrogate must issue a citation accordingly; and on the return thereof, *364he must make such a decree in the premises as justice requires. But in. either of the following cases the decree must dismiss the petitioner without prejudice to an action or an accounting, in behalf of the petitioner: (1> When an executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity or legality, absolutely, or-on information and belief. * * *"

Section 2725 of the Code of Civil Procedure contains the following, among other provisions:

“In either of the following cases, the surrogate may, in his discretion make an order, requiring an executor or administrator to render an intermediate account: * * * (3) On the return of a citation, issued on the petition of a creditor, * * * praying for a decree directing payment thereof, as prescribed in section 2722 of this act. (4) Where eighteen months have elapsed since letters were issued and no special proceeding, on a petition for a judicial settlement of the executor’s or administrator’s account is. pending.”

It will be observed that, by this section, it is discretionary with the surrogate’s court whether, on the return of a citation issued on the petition of a creditor, it will make an order requiring a representative to render an intermediate account. The nature of the petitioner’s claim, or how it arose, is not set forth in the petition, but it is stated in the verified claim to be for professional services, and disbursements. But the claim is not made a part of the petition. The respondents, by their answer, denied that the services, rendered were of the value of §1,523.63, and denied that the executors ever conceded or admitted the claim, and alleged that, when it was presented, it was duly rejected by them. The appellant states in his affidavit of January 8, 1894, that, when he asked for payment of the claim, one of the executors replied that, in his. opinion, the bill was too large. This state of the record does not authorize a legal conclusion that the claim had, by the acquiescence-of the executors, become a liquidated and undisputed debt against the estate.

It is also urged that the answer is insufficient because it fails to-set forth facts which show it to be doubtful whether the .claim is valid and legal. The sufficiency of the answer must be determined with reference to the allegations in the petition, which, it will be observed, set forth no facts constituting a cause of action,, except that the petitioner’s claim for $1,523.63 had been presented,, and not rejected, and had become a liquidated debt against the estate, which is explicitly denied in the answer, and it is averred therein that the claim was rejected when presented. This answer is clearly sufficient to put in issue every allegation contained in the petition, and, in so far as it was founded on sections 2722 and 2725,. it was the duty of the surrogate’s court to dismiss it, as, in its discretion, it was authorized to do. Section 2725.

Was it error to dismiss the petition, in so far as relief was sought by it under sections 2726 and 2727? which provide:

“Sec. 2726. In either of the following cases, the surrogate’s court may, from time to time compel a judicial settlement of the account of an executor- or administrator. (1) Where one year has expired since letters were issued, to him. * * * Sec. 2727. A petition, praying for the judicial settlement. *365of an account, and that the executor or administrator be cited to show cause why he should not render and settle his account, may be presented in a case prescribed in the last section by a creditor. * * * On the presentation of such a petition, a citation must be issued accordingly; except that in a case specified in subdivision first of the last section, if the petition is presented within eighteen months after letters were issued to the executor or administrator, the surrogate may entertain or decline to entertain it, in his discretion.”

It is urged that, because the surrogate’s court issued a citation on the petition, it had exhausted its discretion, and could not thereafter exercise further discretion, and dismiss the proceeding. This contention is not well founded. Such a limitation of the powers of the surrogate’s court would require it to entertain a petition for a judicial settlement on the mere allegation of the petitioner that he was a creditor, though such allegation was denied in the answer. The discretion vested in the court may be exercised when■ever it appears that the validity of the petitioner’s claim has not been conceded or established.

It is also urged that the answer filed by the respondents did not •allege that 18 months had not passed since letters testamentary were issued. This fact affirmatively appears by the petition, and it was unnecessary for the respondents to aver it. In case a year has •elapsed since letters were issued to a representative, the surrogate’s court has power, on its own motion, with or without a petition, to require from the representative a judicial settlement of his account. Code Civ. Proc. § 2626; Anon., 14 Civ. Proc. E. 38. And if, in the case at bar, the letters having been issued more than a .year, such an order had been granted, the fact that the petitioner was not a creditor having an established claim would not have been a ground for reversal of the order. In Re Cowdrey, 5 Dem. Sur. 453, and Re Callahan, 66 Hun, 118, 20 N. Y. Supp. 824, more than 18 months had elapsed since letters were issued to the representatives, and the surrogate’s court had power, with or without •a petition or suggestion from any one, to require a judicial settlement of the accounts of the representatives. The petitioner must show that he is a creditor having an admitted or established claim, before he can, as a matter of right, require a judicial settlement. We think the surrogate’s court acted within the discretionary powers conferred on it by the Code of Civil' Procedure, and its decree should be affirmed, with costs. All concur.