
    International Harvester Company of America, Respondent, v. S. J. Champlin and H. E. McIntyre, as Executors, etc., of Alice R. Keck, Deceased, Appellants.
    Third Department,
    March 5, 1913.
    Decedent’s estate — reference of disputed claim before maturity — party — action by person in whose name contract is made for benefit of another.
    Where an executor doubting the justice of a claim against the estate rejects it, a reference to determine the validity of the claim may be had pursuant to section 2718 of the Code of Civil Procedure although the debt has not yet matured. Such reference is to determine whether the claim is just, not whether it is due and payable.
    
      Although the note in controversy was given by the defendant’s testator to the plaintiff’s local sales agent for goods sold for the plaintiff, it may maintain an action under section 449 of the Code of Civil Procedure as a person in whose name the contract is made for the benefit of another, where the plaintiff held title to the goods sold until the agent’s obligations to it were met.
    Lyon, J., dissented.
    Appeal by the defendants, S. J. Champlin and another, as executors, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 6th day of November, 1911, upon the réport of a referee.
    This case was transferred from the Fourth Department to the Third Department of the Appellate Division. (See 164 App. Div. 917.)
    
      Stearns & Thrasher [William S. Stearns of counsel], for the appellants.
    
      Ottaway & Munson [Arthur B. Ottaway of counsel], for the respondent.
   Kellogg, J.:

We cannot say that the findings of the referee are against the evidence. The reference was not prematurely made. The executors, having advertised for claims, the plaintiff presented a claim showing the indebtedness of the estate upon the promissory note, a copy of which was set forth. The defendants, doubting the justness of the claim, rejected it, and by stipulation dated October 24, 1910, the matter in controversy, viz., the justness of the claim, was, under section 2718 of the Code of Civil Procedure, referred. The order of reference was made and entered October 24, 1910; judgment was entered upon the referee’s report November 6,1911. The note became due November 1, 1910, a few days after the order of reference but before the judgment.

Where a claim is presented to an estate pursuant to notice requiring the presentation of claims, the claimant is not understood as requiring immediate payment, but as claiming that in the due course of administration the claim should be adjusted. A claim, therefore, may very properly be presented before it is. due, and if its justness is denied and the estate and the claimant refer it, the reference is to determine whether the claim is a just claim, not whether it is then due and payable. (Francisco v. Fitch, 25 Barb. 130; Cornes v. Wilkin, 19 N. Y. 129; Bankers Surety Co. v. Meyer, 205 id. 219; Code Civ. Proc. § 1822.)

As the claim was due at the time the judgment was entered the form of the judgment cannot properly be criticised.

At the time the claim was filed and the trial had the plaintiff had no financial interest in the note, but its agent Deuink was solely interested in it. The plaintiff may nevertheless maintain the action under section 449 of the Code of Civil Procedure as the person in whose name a contract is made for the benefit of another. In making his yearly settlement with the plaintiff, December 24, 1908, Deuink, the agent, elected to take from the company this machine and give it therefor his note payable October 1, 1909, but by the original agreement by which he became agent the company held title to all machines sold until his obligations for them to the company were met. Therefore, at the time of the sale in question and the acceptance of the note of the defendants’ intestate, the plaintiff' company had an interest in the machine and there was a certain propriety in taking the note in question in plaintiff’s name. When the note for this machine was paid by Deuink to the plaintiff it then had no further interest or claim upon this machine or its proceeds.

The plaintiff appears in court by an attorney, who it must be assumed until the contrary appears had authority to appear for it in this action. Deuink also was actively engaged in prosecuting the action for the plaintiff. The judgment, therefore, fully protects the defendants against the plaintiff, to which the note is payable, and Deuink, who is solely interested in it. The judgment is, therefore, affirmed, with costs.

All concurred, except Lyon, J., dissenting.

Judgment affirmed, with costs.  