
    The De Kalb Avenue Methodist Episcopal Church, Plaintiff, v. George S. Kelk, as Administrator, etc., Defendant.
    (Supreme Court, Kings Trial Term,
    January, 1900.)
    Costs — On a rejected claim against a decedent as affected by consent that the surrogate may hear it — Statute of Limitations.
    A person, having a claim against the estate of an intestate, does not by bringing his action thereon, against the administrator, before the time has expired within which the latter may, by statute (Code Civ. Pro., § 1836), file a consent that the surrogate may hear and determine the claim, excuse the filing of such consent; but if such consent be filed in time, though after the action is begun, the claimant cannot get costs of the action.
    Action on a claim against an administrator for money alleged to have been obtained of the plaintiff by the decedent by fraud, i. e., in that the decedent by falsely and fraudulently representing' herself to be without means and in poverty obtained such money of the defendant in charity. The claim having been presented to the administrator was rejected by him on March 17th, 1898. This action was begun on September 6th, 1898. The claim was for $1,390 and the plaintiff has obtained a verdict for $213. Motion for a certificate for costs under section 1836 of the Code of Civil Procedure.
    P. H. Vernon for motion. .
    Robert C. Beatty opposed.
   Gaynor, J.:

As provided in section 1836 of the Code of Civil Procedure, if it appears that the claim after being presented to-'the administrator has been “ unreasonably resisted or neglected, or that the defendant did not file the consent provided in section 1822 at least ten days before the expiration of six months from the rejection thereof ”, the plaintiff is entitled to costs.. The said consent provided for in section 1822 is that the surrogate may hear and determine the claim on the judicial settlement of the administrator’s accounts. The administrator did not file such consent. The last day he could file it was September 7th, 1898. This action was begun on September 6th. I do not see that the beginning of the action1 was any reason for not filing it. If he had filed it on the 7th it may well be that the plaintiff would have conformed to it. I cannot see that’the code sections in question contemplate that a claimant must delay bringing an action until the time within which such consent may be filed has expired, which would bring him within ten days before his claim would outlaw (sec. 1822.), in order that he may claim costs of the action. If the •administrator had filed the consent within the prescribed time either before or after the action was begun he could avail himself of it, ■but not having done so the plaintiff is entitled to costs. It may well be suggested'also that the administrator by neglecting to determine until the last day whether he would file such consent, “unreasonably neglected” the plaintiff’s claim; or that if he determined to ‘file it but neglected to do so, that was unreasonable neglect. Ho reason for the- delay has been given, so that I must •deem it mere neglect. One with such a claim must have some anxiety 'when the time within which he may begin his action is getting down to ten days. In a recent' case substituted service had to be resorted to because the administrator concealed himself when the limitation was about'to expire.

The motion is granted.  