
    Emma E. Dryer, Resp’t, v. Elon G. Brown, as Surviving Executor, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 15, 1890.)
    
    Executobs aed admihistbatobs— Claim aqahtst estate—Pleadings— Costs.
    A claim against an estate was disputed and referred. The attorneys en-, tered into a stipulation that, except as far as costs were concerned, the case should he treated as one in the supreme court, and that the same rules of law should govern, that a complaint should he served and an answer. This was done. The defendant did not plead the statute of limitations. He now'desires to do so; and the general term having reversed the judgment of the referee, he applied to the special term for leave to plead the statute, and for other and further relief. His attorney excused his making the stipulation, upon the ground that it was done in haste, and that he did not suppose its effect would be to preclude him from any defense he might have set up on a reference under the statute. The defendant also made affidavit that he did not understand the legal effect of the stipulation, and that he had not been authorized by any of the persons to whom he was legally accountable to waive the defense of the statute. Upon the motion at special term defendant was allowed to serve an answer upon payment of supreme court costs. Held, that there was no reason why defendant should pay costs; that the leave to serve an amended answer should be denied, but that the stipulation be also vacated, and the pleadings served thereunder stricken out without costs, thus leaving the matter to be governed by the rules usual to such special proceedings.
    Appeal from an order made at the Herkimer special term. A disputed claim against an estate was referred under the statute. The attorneys entered into a stipulation that the claimant should serve a complaint, and the defendant an answer in the same manner and subject to the same rules of law as though the action was pending upon service of summons in the supreme court, and that .the issues generally should be submitted to a referee, and the cause tried thereon and thereunder with the same force and effect as though the action were pending in the supreme court, except the subject of costs.
    The judgment was reversed, 52 Hun, 321; 23 1ST. Y. State Bep.r 695, and the court did not decide whether the defense of the statute of limitations, which had not been pleaded, was, under the stipulation, available to the defendant, but intimated that if he desired to plead it he should go to the speci al term. Hence this application.
    
      M D. Mathews, for app’lt; Sayles, Senrle & Sayles, for resp’t.
   Hardin, P. J.

At our April term in 1889 we reversed the judgment and orders, and in the language of the order of reversal are the following words: “ A new trial is hereby ordered before another referee, and the present reference to Hon. Theodore W. Dwight, referee, is vacated with costs to abide the event of the above entitled matter.” That order seems to have been filed in the clerk’s office of Oneida county on the 31st day of May, 1889. Thereafter the defendant gave notice of a motion for leave to amend his answer so as to set up “ or be allowed in proper form to plead the statute of limitations “ or for such other or further order or relief as to the court may seem just.”

Leave was granted to serve an amended answer “ setting forth the statute of limitations upon "payment by defendant to plaintiff’s attorneys of all plaintiff’s costs and disbursements in an action from the service of notice of trial until the present time, with ten dollars costs of this motion in addition thereto, said costs and disbursements to be taxed by the clerk upon the usual notice, and to be allowed to the same extent and amounts as a plaintiff would be entitled to if awarded costs and disbursements in an action tried before a referee and appealed and decided at general term, with ten dollars motion costs in addition thereto. These costs shall be paid as a condition of being allowed to amend, and within twenty days from date of service of the copy of this order with notice of its entry ; unless said costs are paid as-above provided, the motion for leave to amend is denied, with ten dollars costs to be paid by defendant to plaintiff.” There is an appeal from that portion of the order which we have quoted-

The learned judge at special term, in dealing with the question presented by the application to amend the answer, and in considering the rule as to costs in case the application was granted, found some perplexity, and he observed : “ The difficulty arises out of the peculiar terms of the stipulation entered into between the parties, which seems to make the case an action as to everything excepting costs, and to leave the question of costs to be determined as though the case were still a reference under the statute; and in this consideration of things it is not quite clear' what the effect of the decision by the general term, as to costs, is; what is meant by the words ‘ costs to abide event.’ Whether to-abide event means to abide the final direction by the court as to costs, or the final result as to the recovery of the claim. By reason of this uncertainty, resulting from the stipulation of the parties, I do not think the amendment proposed should be allowed without clearly protecting plaintiff. This defense might-have been alleged in the defendant’s answer when originally made. If the stipulation had not been made, the defense would have been urged without a formal statement of it in a pleading. * * * While I am inclined to allow the amendment to be-made, I think I should not permit it except upon the same terms-I would impose if tlm rule as to costs, in an action, was fully applicable to the case.”

Doubtless the observation of the learned judge, to the effect that if there had been no stipulation and no pleadings under the= stipulation (this being a special proceeding), any defense which the party had could have been availed of upon the hearing. Roe v. Boyle. 81 N. Y., 307; Bucklin v. Chapin, 1 Lans., 443.

Whether the defendant, who is an executor, will be liable for •costs in this action cannot now be determined ; it cannot now be said that his defense is unreasonable, or that costs will finally be adjudged against him as an executor. Hopkins v. Lott, 111 N. Y., 577; 20 N. Y. State Rep., 130 ; Pursell v. Fry, 19 Hun, 595; Harrison v. Ayers, 18 id., 336.

The notice of motion, as we have already quoted it, was broad enough to allow the special term to vacate the stipulation in respect to pleadings. Whether the stipulation as to pleadings should have been vacated or not was a question properly before the special term.

In the opinion which we delivered when this case was before us upon appeal, we referred to the force and effect to be given to the stipulation as it then stood in the case; however, in doing so, we observed, viz.: “If the defendant shall be advised .that the stipulation ought not to remain or that he had no right to waive the statute of limitations as a defense, and in doing so has exceeded his authority as an executor, and can make a proper case for relief from the stipulation, he should present the case to the special term and ask to vacate the stipulation, or to be at liberty to amend his answer setting up the statute of limitations. Dayton’s Surrogate, 318; Willard on Executors, 317; Wilcox v. Smith, 26 Barb., 355.’’

The question of whether the stipulation might have been vacated or not in respect to the service of pleadings, was, therefore, properly before the special term.

In an affidavit used upon the motion, referring to the origin of the stipulation, there is found this passage: “ The stipulation providing for pleadings was very hastily drawn, while plaintiff’s counsel was anxious to take a train for the west; it was never maturely considered; defendant was not consulted in regard to it until after it had been made-; it was made on the spur of the moment.’’

In a verified petition of the defendant, the executor, which was used upon the motion, there may be found this passage : “ When this proceeding was commenced deponent was advised to allow the stipulation above 'specified regarding the service of pleadings to be made, and was advised and supposed that said stipulation and the said answer to the amended complaint first served herein would not prevent defendant from relying upon the statute of limitations or from claiming that said plaintiff's claims were, or part of them were, outlawed. That deponent was advised this was a special proceeding, and that * * * any defense appearing on the trial could be relied upon whether pleaded or not, * * * And deponent and his counsel did not suppose there was any trouble about the pleading, or that the statute of limitations could not be relied upon; that if there had been any such question suggested upon the trial, deponent and his counsel would have asked to amend the answer to allege the necessary defense in that regard, but deponent was taken entirely by surprise when the referee reported said notes were sustained Because the statute of limitations was not pleaded."

It is also stated upon the oath of the executor, that he had “ no authority from any of said legatees to waive said statute of limitations, and deponent is advised and fears he may be held personally liable for said notes and amounts if the same are established upon any such evidence as was offered on the other trial and allowed to pass on account of lack of pleading of the statute of limitations.”

To contradict the facts that are stated in the quotations which we have made we find nothing in the opposing papers. We therefore think the special term might properly have assumed that the facts stated in the quotations found in the moving papers were established. Under such circumstances we think it would have been proper and within the discretion and power of a special term to have vacated the stipulation in respect to the pleadings, and allowed this special proceeding to stand upon the ordinary practice which obtains in respect thereto.

It was not within the contemplation of the parties to change this special proceeding in its essential nature by the stipulation which was entered into in respect to the pleadings by the attorneys.

These views may properly lead to a reversal of so much of the order as allows the defendant to serve an amended answer upon payment of costs' (all that part of the order appealed from) and the order of the special term amended so as to vacate the stipulation as to the pleadings, and striking out the pleadings had thereunder, and allowing the proceeding to stand to be governed by the usual practice applicable in such cases.

The order of the special term modified by striking therefrom all the provisions as to the amended answer and payment of costs asa condition of serving the same; and inserting therein a provision vacating the stipulation as to pleadings, and striking out the pleadings had under the stipulation, and as so modified affirmed, without costs to either party of the motion, or upon this appeal.

Martin, J.

On the 25th day of June, 1889, the appellant made a motion at the Herkimer special term for leave to serve an amended answer in this proceeding, for an inspection and discovery of certain notes and letters claimed to be in the respondent’s possession, or for such other or further order or relief as to the court as might seem just. • The court granted the appellant leave to serve an amended answer, on condition that he pay all the respondent’s costs and disbursements from the service of notice of trial until the date of such order, with ten dollars costs of the motion, such costs and disbursements to be allowed to the same extent and amount as a plaintiff would be entitled to if awarded costs and disbursements in an action tried before a referee and appealed and decided at general term. The discovery and inspection was granted as to the notes, but denied as to the letters. The appellant appeals from that portion of the order which denies an inspection of the letters, and also from that part of the order which imposes the payment of costs to the respondent as a condition of leave to serve an amended answer herein.

I concur in the opinion of Hardin, P. J., that the order appealed ■from should be modified by striking therefrom all the provisions as to the amended answer and payment of costs as a "condition of serving the same, and inserting therein a provision vacating the stipulation between the parties as to pleadings, and striking out the pleadings served in pursuance of such stipulation.

This leaves for consideration only that portion of the order which denies an inspection of the letters. An examination of the papers read upon this motion leads me to the conclusion that the ■order relating to the inspection and discovery of such letters and ■notes was proper, and should be affirmed.

I, therefore, concur in the opinion of Hardin, P. J., that the judgment should be modified as therein stated, and as modified should be affirmed, without costs to either party of the motion or upon this appeal.

Hardin, P. J., concurs; Merwin, J., not voting.  