
    (31 Misc. Rep. 47.)
    ADLER v. DAVIS et al.
    (Supreme Court, Trial Term, New York County.
    March 26, 1900.)
    Short Statute of Limitations — Claims against Estates — Rejection—Arbitration.
    Under Code Civ. Proc. § 1822, barring a claim against an estate unless an action is brought thereon within six months after its rejection by the executor, a claim which was not formally rejected until June 2, 1899, and which both parties had agreed to arbitrate after its rejection, was not barred, where the action thereon was brought December, 1, 1899.
    Action by Simon Adler against Henry H". Davis and others. Judgment for plaintiff. .
    Scott & Treadwell, for plaintiff.
    Edward Kaufman, for defendants.
   McADAM, J.

The sole question reserved at the trial was as to the applicability of the short statute of limitations prescribed by section 1822 of the Code of Civil Procedure, which provides that where an executor or administrator “disputes or rejects a claim against the estate of the decedent it shall be barred unless, within six months thereafter, action be brought thereon,” etc. See, also, Selover v. Coe, 63 N. Y. 438. The object of the statute was to enable executors and administrators to wind up estates without delay, by barring out all creditors who do not present their claims or prosecute them within the prescribed time. It is highly penal in its character, and to be strictly construed; and, to entitle an executor or administrator to the benefit thereof, the statute must in all essentials be complied with. Hoyt v. Bonnett, 50 N. Y. 538. The decedent died July 23, 1898, and publication for claims was commenced in November, 1898, requiring their presentation on or before June 2, 1899. The plaintiff’s claim was presented in December, 1898, and was not formally rejected by the executors until the letter of June 2, 1899, marked “Plaintiff’s Exhibit B.” See Hoyt v. Bonnett, supra. The executors carried on negotiations respecting the claim as late as November 24, 1899, when, in answer to a communication from the claimant’s attorneys suggesting a reference, and requesting the executors to send the names of any persons acceptable to them as referees, the attorneys for said executors replied, suggesting five names, the first of which the claimant promptly accepted. The claimant thereupon signed and acknowledged a stipulation that the matter be referred to the person so selected by the executors. This consent was sent to the attorneys for the executors, but was never acted upon by them, so that, in consequence of their neglect, no reference was ordered. To avoid the running of the statute, and one day before the six months after the rejection of the claim, to wit, on December 1, 1899, the plaintiff brought the present action. These negotiations were an admission that, the matter was still open for settlement, and, if there was a prior rejection, that it was not considered final and conclusive. Oalanan v. McClure, 47 Barb. 206. There has been no settlement of the estate, and no distribution of the assets to any one, so that the executors have been in no possible manner prejudiced by what they now term “unreasonable delay.” See In re Mullon’s Estate, 145 N. Y. 98, 39 N. E. 821; Erwin v. Loper, 43 N. Y. 521; Baggott v. Boulger, 2 Duer, 160.

The plaintiff is entitled to judgment for the amount claimed, and, as the defendant refused to refer, to the costs as well. Code, § 1836; Fort v. Gooding, 9 Barb. 388.  