
    Louisa Hayden, Resp’t, v. Mary R. Pierce, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 23, 1893.)
    
    1. Bills and Notes—Payment.
    In an action against an executrix upon a note given by her testatrix to plaintiff for past and future services, and payable one year after death, the answer alleged that the note had been paid by testatrix conveying to plaintiff a house and lot. On the trial plaintiff’s witnesses testified that testatrix told them, prior to such conveyance, that she had not done enough for plaintiff, and wanted to do xriore for her than the note, and would buy her a house and lot and deed it to her. Held, that a finding by the jury that it was not testatrix’ intention to satisfy the note by the deed was justified by the evidence.
    3. Executors and administrators—Limitation.
    In such case it appeared that testatrix died in January, 1890, that the will was admitted to probate in April, 1890, that in December, 1890, an order of publication for creditors was granted, that about January 25, 1891, plaintiff’s claim was rejected by written notice, and that the action thereon was begun after December 14, 1891, the date of the summons, which was served by publication, the defendant then being, and having been for years, a resident of Illinois. Held, that defendant’s defense of the short statute of limitations provided in § 1822 of the Code as a bar to the action was not established.
    
      Trial at the Otsego circuit; verdict for the plaintiff for the sum of $1,390. A motion was made for a new trial (on a case and exceptions and denied. Appeal from the order and judgment on the verdict entered in favor of the plaintiff. Appellant is executrix of Eliza W. Brown, deceased. The action was brought upon a “ promissory note or instrument in writing ” bearing date, Milford, January 23, 1882, and it contained the following- language: “ On or before one year after my death, for value received I promise to pay to Louisa Hayden one thousand dollars with interest from April 1, 1882, at the rate of six per cent per annum semiannually. This note is given in consideration for services in full from March, 1864, to April 1, 1882, and for services to be rendered for me from April 1, 1882, until my death. * * * ” The note was given to the plaintiff, who continued in the employ of the maker thereof until the time of her death, which occurred on the 1st day of January, 1890. She left a last will and testament in and by which the defendant was named as executrix. On the 9th of April, 1890, the will was admitted to probate by the surrogate of Otsego county, and defendant as sole executrix filed,her official oath and consented to act as executrix of said will. The answer contains several denials and alleged payment of the nbte; and that on the 2d day of October, 1886, the testatrix conveyed by warranty deed a house and lot to the plaintiff which the testatrix had just previously purchased for the sum of $1,600. The consideration named in the deed from the testatrix to the plaintiff was one dollar. The defendant in her answer alleged “ the real and true consideration for the conveyance to the plaintiff was the said written instrument and the aforesaid agreements of the plaintiff.” The answer also alleged that the plaintiff exhibited her said claim upon the written instrument on or about the 5th day of January, 1891, and that the same was disputed and rejected, and that notice of the rejection of the claim was personally served on the plaintiff on the 26th day of January, 1891. That at the time of the presentation of the claim the publication of notice to creditors requiring the presentation of claims against the estate of Eliza Brown had been commenced, and that the claim was not referred as prescribed by law “ and more than six months elapsed after the rejection of said claim before the commencement of this action, or any action, for the recovery thereof against this defendant.
    “That this action was not commenced within six months after any part of the alleged debt became due, nor did the alleged cause of action accrue within six months before the commencement of this action. And the defendant pleads as a bar to this action the short statute of limitations provided in § 1822 of the Code of Civil Procedure.” An order made by the surrogate of Otsego county dated the 29th day of December, 1890, in the matter of the personal estate of Eliza W. Brown, was granted on the application of the executrix, which provided as follows: “It is ordered that she cause to be published in the newspaper called the Otsego Republican, published at Cooperstown in said county, a notice requiring all persons having claims against said deceased to present the same with vouchers thereof to the said executrix at the law office of Edick & Smith in the village of Cooperstown, N. Y., on or before a day to be specified in such notice, which shall be at least six months from the day of the first publication of said notice.” A notice was published. January 13, 1891, in the city of Chicago the defendant wrote a letter to Messrs. Edick & Smith, in which she stated: “ I desire that you, as my attorneys, immediately serve upon said claimant a notice of rejection and disallowance and about the 25th of January the attorneys served upon the plaintiff a written notice referring to the claim presented by the plaintiff, which among other things contained the words: “ that the annexed alleged claim presented against the estate of Eliza W. Brown, deceased, is rejected and disallowed by Mary R. Pierce, as executrix of the last will and testament of Eliza W. Brown, deceased,” which notice stated the grounds upon which it was rejected and was dated January 7, 1891, and signed “ Mary R Pierce, executrix of the last will and testament of Eliza W. Brown, deceased.” This action was not commenced “ until after December 14, 1891, the date of the summons; and was thereafter begun by the service of the summons on the defendant without the state of New York, pursuant to an order for publication made on December 24, 1891.” At the close of the evidence the defendant moved the court to direct a verdict in favor of the defendant on the ground that the action is barred by the statute of limitations; the motion was denied and the defendant excepted. Thereupon the defendant asked to go to the jury upon the question of whether or not the house and lot was conveyed to the plaintiff in payment of the note; which the court allowed. At the close of the charge the defendant’s counsel asked the court “ to hold that the defense of the short statute of limitations is fully established, and that a verdict should be directed for the defendant.” The court declined and an exception was taken.
    The following is the opinion of the court below:
   Parker, J.

The claim upon which this action is brought was presented to the attorneys for the defendant at Cooperstown, in this state, and rejected, in January, 1891. At that time the defendant was, and ever since has been, a resident of Chicago, 111., and at no time prior to the commencement of this action had she been within this state. This action was not commenced until considerably more than six months had elapsed since such rejection, and the claim itself has never been referred. The defendant, therefore, claims that a recovery thereon was barred by the provisions of § 1822 of the Code. The plaintiff claims that the provisions of that section do not apply to this case, because of the nonresidency and continued absence of the executrix from this state. I so held at the circuit, and such is the question that I am now asked to review. The argument is that the provisions of § 401, in chapter 4 of. the Code, do not apply to cases provided for in § 1822; that the cases provided for in such last section are expressly excepted from the operations of § 401 by the provisions of subdivision 1 of § 414. In other words, that a claim presented to an executor and rejected is “ a case where a different, limitation is specially prescribed by law,’ within subdivision 1 of § 414, and hence the nonresidency of the defendant has no effect upon the omission to bring suit within six months after the rejection of the claim. It seems to me that this argument has been rejected by our general term, and that the question presented is no longer an open one in this department. In Titus v. Poole, 60 Hun, 1; 38 St. Rep., 627, the defendant sought to-defeat the claim against him because it was not brought within-six months after its rejection. But the court held that, although not brought within suclr period, the provisions of § 1822 did not control, because an action for the same claim had been commenced within the six months in which the plaintiff was non-suited, and that hence the provisions of § 405 authorize him to commence a new action notwithstanding the limitation prescribed in § 1822. In Wilder v. Ballou, 63 Hun, 118; 43 St. Rep., 514, the defendant sought to defeat the action on the ground that it wras barred by the short limitation contained in § 1822. But the-court held that it was not so barred, because the commencement of the action on the claim was “stayed by an order of court,” and’ that lienee, under the provisions of § 406, the time of continuance of such stay was no part of the six-months limit fixed by § 1822. Here are two distinct decisions that the limitation provided for in § 1822 may be modified and overcome by the provisions of §§ 405 and 406 in chapter 4; in other words, that a claim presented to an executor, and rejected, is not such a case as is excepted from the operation of the provision of chapter 4 by § 414. If, by virtue of the provision of § 406, the time during which an action is stayed by order of court is no part of the-six-months limit provided by § 1822, clearly § 401 can apply, and the' time during which this defendant was a non-resident,, and out of the state, is no part of such limitation. On the authority of the cases above cited, I must hold that this action was not barred.

Mooney & Shipman, for app’lt; E. M. Harris for resp’t.

Another defense set up in the answer is that the claim had been paid by the testatrix in her lifetime, by the conveyance to-the plaintiff of certain premises under an agreement that it-should satisfy and discharge the note in question, and it is now claimed that the verdict of the jury against the defendant on that issue is against the weight of "evidence in that case. The burden of proof was with the defendant to establish her claim that the conveyance of the premises to the plaintiff was in payment and discharge of the note upon which this action is brought. It may have been made in payment. It may have been an additional and gratuitous bounty, or a gift in consideration of the increased labor which the helpless condition of the testatrix imposed upon the plaintiff. Such question was peculiarly within the province of the jury, and I think that, upon the evidence in the case, they were justified in reaching the conclusion which they did reach. The motion for a new trial is therefore denied, with costs.

Hardin, P. J.

Whether the note was paid or not by the conveyance of the house and lot mentioned in the pleadings and the-evidence was a question of fact for the jury. Mrs. Margaret B.. Wilber testified in behalf of the plaintiff, and in the course of her evidence she said: “ Mrs. Brown was wheeled up to our house, and she said she did not think she had done enough for Louisa; that she, Mrs. Brown, had become paralyzed since she gave plaintiff the note, and she wanted to do something more for her, and she thought the best thing she could do would be to buy the-plaintiff a house and lot. Then she said that with the note the plaintiff had and with a house and lot the plaintiff could by doing what little work she could make a living. * * * Mrs. Brown said, 11 don’t want to change my will, but I want to deed her, the plaintiff, this house.’ Mrs. Brown was to have the rentals during her lifetime, and said ‘I have money enough to give her this house and not change my will.’ * * *" Mrs. Brown said she wanted to give the house and lot besides-the $1,000 note, and felt she had not given Louisa as much as she ought to do. I knew of Mrs. Brown giving the plaintiff the $1,000 note. She, Mrs. Brown, asked me how much she ought to give Louisa. She asked me if I thought $500 was enough, and I said no. She then asked me if I thought $1,000 was enough, and I said it was none too much. I told her, Mrs. Brown, that was not as much as plaintiff had earned.” In giving evidence of the declarations of the testatrix, the witness, Deifendorf, said r “ She said she didn’t think she had done enough for Louisa, and she had bought a house and lot and wanted to know of me what I thought about her giving her the house and lot; I told her that she couldn’t do too much for Louisa; then she said she concluded to give her a deed of that place, but to be hers as long as-she lived; that is, Mrs. Brown’s. I attended to the execution of the deed” We think the evidence just quoted, together with the-other testimony bearing on the subject, amply justified the jury in finding that it was not the intention of the testatrix to satisfy and cancel the note by the conveyance of the house and lot to-the plaintiff; we must, therefore, accept the verdict upon the question involved, as it is predicated upon evidence ample and sufficient to justify a finding that the note had not been paid by the testatrix.

(2) It appears by the evidence that the defendant resided in the city of Chicago, in the state of Illinois, when she took the letters testamentary, and she has continued to reside there. We think the defendant failed to make out a defense under § 1822 of the Code of Civil Procedure, and that the trial judge did not err in refusing to hold that the defense of the short statute of limitations was established. Code Civ. Pro., § 401; Titus v. Poole, 60 Hun, 1; S. C., 38 St. Rep. 627; Wilder v. Ballou, 63 Hun, 118; S. C., 43 St. Rep., 514 ; Hill v. Supervisors, 119 N. Y., 344; 29 St. Rep., 588. In the latter case, at page 347, Judge Gray said: “ Section 405 was enacted with reference to the enforcement of the civil remedies prescribed by the Code, and its application is to actions generally; and which the Code of Civil Procedure was enacted to regulate.” The defendant was absent from the state “and resided out of the state when the cause of action accrued.” The proof and admissions upon the trial are abundant upon that subject. Wheeler v. Webster, 1 E. D. Smith, 1; Bennett v. Cook, 43 N. Y., 537.

(3) We think no error was committed in rejecting the declaration of the deceased which the defendant sought to prove by the witness Parshall. It does not follow that because her declarations were received in evidence against her executrix that the declarations of the deceased could be used in her own behalf. The opinion delivered at special term by Parker, J., properly disposes of the questions involved in the case.

Judgment and order affirmed, with costs.

Merwin, J., concurs; Parker, J., not sitting.  