
    In the Matter of the Judicial Settlement of the Accounts of Mary A. McGuire, as Executrix of the Will of John Callahan, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 17, 1895.)
    
    Executor — Claim—Admission.
    The service of a verified answer by the execution denying liability, in an action commenced against the testator and discontinued after the subitution of the executor, is not equivalent to its rejection when subsequently presented to the executor, but it is established by the failure of the executor to reject or refer it.
    Appeal from the decree, settling the accounts and directing payment of a creditor’s claim.
    
      W. R. Page, for app’lt; W. W. Niles, Jr., for resp’t creditor.
   Van Brunt, P. J.

In December, 1888, the respondent offered certain real estate at a notion by R. Y. Hartnett & Co., auctioneers. It was knocked down to John Callahan, the appellant’s testator, who made a payment to the auctioneers oil account of the purchase money. He thereafter refused to complete the purchase on the ground that the title to said estate was defective. The property was then resold, and brought a price lower than that which Callahan had bid. On the 20th of February, 1889, the respondent brought an action in the court of common pleas against Callahan, demanding judgment for the deficiency between the two sales, and for the expenses of the resale. Callahan died in April, 1889, before the trial or the action. The appellant was appointed ins executrix, and the action was revived against her as such executrix. An amended complaint was served, setting up the same cause of action ; and in July, 1889, the defendant appeared, and served a verified answer, denying the cause of action. On the 1st of August, 1889, the plaintiff therein moved to discontinue the action in the court of common pleas, which motion was granted and an order thereupon entered. Subsequently, in August, 1889, the respondent brought an action in the same court against the auctioneers, setting up substantially the same cause of action, and demanding the payment to her of the amount deposited by Callahan upon said sale. The issues were tried in February, 1891, and the plaintiff’s complaint was dismissed at the close of her case. In April, 1891, the respondent served upon the executrix a statement of her claim against the estate of John Callahan. This claim the executrix never rejected or offered to refer. On the 3d of February. 1892, the respondent presented a petition to the surrogate, stating that she was a creditor of John Callahan, deceased ; that more than eighteen months had elapsed since the appointment of the executrix, and that she had not accounted, and praying for a judicial settlement of the account. A citation was thereupon issued to the executrix. Certain proceedings were had, and the executrix was ordered to file her account. The executrix then filed her account, and the petitioner objected to it upon the ground that it did not state the amount or nature of her claim. The objections were referred to a referee, who found that the claim of the respondent had been established against the estate of the decedent, and should be paid. This report was confirmed, and a decree thereupon entered, and from that decree this appeal is .taken.

It seems to be assumed or claimed that the denial of the plaintiff’s claim in the action in the court of common pleas was equivalent to a rejection of the same. But the difficulty about the position of the appellant is that the proceeding in the court of common pleas was not under the statute. That action was discontinued, -the respondent preferring to pursue her claim against the estate under the statute. She then presented her claim to the executrix, and the executrix neither rejected nor offered to refer the same ; and after the lapse of a reasonable time, no action being taken upon it by the executrix, it became established. The answer in the action in the court of common pleas had nothing to do with the proceeding under the statute. The executrix was bound within a reasonable time to reject or offer to refer. If she did not, she admitted the claim ; and this was the condition of affairs which appeared before the surrogate, and he was clearly right in directing its payment.

The decree appealed from should be affirmed, with costs.

All concur.  