
    Mary E. Hart, Respondent, v. William D. Hart, as Administrator of the Estate of James M. Hart, Deceased, Appellant.
    
      Costs against an executor—suit before, the expiration of five months and twenty day» waives the filing of a consent to a reference and the right to costs.
    
    Under section, 1822 of the Code of Civil Procedure, which prescribes a six months’' ' statute of limitations for actions on rejected claims against an estate which hava not been referred as provided in that section, and section 1886 of the' Code,, providing that, in such an action, the court may award costs to the plaintiff if the defendant did not file a consent to refer the claim “at least ten days-before the expiration of the six months,” the executor has five months and! twenty days after the rejection to file the necessary consent, and the. commencement of an action on the claim before the expiration of that time operates-as a waiver by the claimant of the filing of the consent and of his right to costs-if. successful.
    Appeal by the defendant, William D. Hart, as administrator of the estate of James M. Hart, deceased, from an order of the Supreme-Court, made at the Oneida Special Term and entered in the office-of the clerk of the county of Oswego on the 6th day of June,. 1899, awarding costs and disbursements of the action to the plaintiff, and directing that the same be paid from the funds of the* decedent’s estate in the hands of the defendant.
    
      Watson M. Rogers, for the appellant.
    
      Merrick Stowell, for the respondent.
   Adams, J.:

There is little or no dispute about the facts of this case. The-defendant, as administrator of the estate of James M. Hart, deceased,. published the usual notice for claims. Thereafter, and in due course of time, the plaintiff presented her claim, which was rejected by the administrator, who, at the same time, offered to refer. This offer was accepted by the plaintiff, and some correspondence followed with reference to -the: selection of a referee, but none was-agreed upon, and upon the 24th day of November, 1807, this action was commenced.

Section 1822 of the Code of Civil Procedure confers upon the Surrogate’s Court jurisdiction to hear a rejected claim, provided the “ respective parties ” have tiled with the surrogate a written consent that he may determine the claim upon the judicial settlement of the accounts of the executor or administrator; and by section 1836 costs are allowed to the plaintiff whenever the defendant does not tile such consent at least ten days before the expiration of the six: months from the rejection ” of the claim.

Thus it will be seen that the obvious design of this statute is to give the executor or administrator five months and twenty days in which to file his consent, and in case of his failure so to do, to allow the claimant ten days in which to commence his action prior to the expiration of the short Statute of Limitations, with an absolute right to costs in the event of a recovery.

The plaintiff’s claim was rejected on the 14th day of June, 1897,, and consequently the defendant had until December fourth following in which to file the consent required by section 1822 of the-Code of Civil Procedure, but it seems that she elected to bring her action ten days prior to that time. The referee before whom the case was tried certifies that the plaintiff’s demand was not unreasonably resisted, as he was undoubtedly warranted in doing, inasmuch as the recovery was less than one-quarter the amount demanded; and consequently the only question with which we are concerned is. whether, under the circumstances of the case, the omission of the defendant to file the consent, contemplated by section 1822 entitles the plaintiff to the costs of the action.

Had the plaintiff "deferred commencing her action ten days longer than she did, and had the defendant omitted in the meantime to file such consent, there would, of course, be no question as to the plaintiff’s legal right to costs in this case; but we think that the Legislature, when it provided that such consent should be filed at any time after the rejection of the claim and within ten days of the expiration of the six months from such rejection, clearly intended that a claimant-might avail himself of the remaining ten days in which to bring his action, and thus place himself in a position to recover costs, and at the -same time protect himself against .the short' Statute of Limitations. If our construction of the statute is correct, then it would seem.to follow that the commencement of an action at any time within the five months and twenty days after the rejection' of a claim should be regarded as a waiver on the part of a plaintiff of his right to costs in" the' event of a successful termination of his action.

The obvious reason for requiring an executor or administrator to consent that a disputed claim may be heard by the surrogate upon the. judicial settlement of his accounts is to save the claimant the trouble and expense of an action. But if, without waiting until the expiration of the prescribed time to file such consent, the claimant brings his action, his doing so is equivalent to a waiver of the statutory requirement; for, after the commencement of an action, the filing of the consent specified in section 1822 would be a useless formality, and this is something which the law does not require. (Stokes v. Mackay, 147 N. Y. 223; Shaw v. Republic L. Ins. Co., 69 id. 286.)

Many cases might be cited where such an election has been treated as a waiver, a familiar one being that of omitting, to file proofs of loss witliin the time prescribed by the condition of a policy of insurance, in cases where the insurance company, before the expiration of the prescribed time, had denied its liability and declared its intention not to pay the loss. . Under these circumstances, it has been frequently held that the insured was absolved from the necessity of filing his proofs before the bringing of his action. (Brink v. Hanover F. Ins. Co., 80 N. Y. 108; Lang v. Eagle F. Co., 12 App. Div. 39; Flaherty v. Continental Ins. Co., 20 id. 275.)

.. It is true that, in the cases cited by way of illustration, the waiver was of a contractual requirement only; but a party may waive a statutory, or even a constitutional, provision, designed for his benefit, as well.as one which grows out of a contract, and, having once, waived it,, he is estopped fr.om thereafter claiming the benefit. (Matter of Cooper, 93 N. Y. 507; Matter of N. Y., L. & W. R. R. Co., 98 id. 447, 453.)

For the reasons above stated we think that the plaintiff is not entitled to recover the costs of this action, and, consequently, that the order appealed from should be reversed.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  