
    Sarah V. Denise, Resp’t, v. Daniel S. Denise, as Adm’r, etc., App’lt.
    
    
      (Court of Appeals,
    
      Filed October 23, 1888.)
    
    1. Statute op limitations does not run against an account continued THROUGH A NUMBER OP YEARS, SO LONG AS PAYMENTS ABB MADE
    In a suit by a wife against her husband’s administrator upon an ante-nuptial agreement by the terms of which the husband was to pay to her $300 a year, and she was to provide at her house, at which they were to reside, everything necessary for the living for them both during life, plaintiff proved that her part of this agreement was carried out, but that her husband had only furnished _ the equivalent in supplies aud cash of eighty dollars a year to the plaintiff. These payments were made by the intestate every year until 1879, which was less than six years before the . commencement of this action. Held, that these payments prevented the Statute of Limitations from running as to any balance due for any of the years. That a payment upon the balance due the plaintiff took the entire balance out of the operation of the Statute of Limitations. Following Smith v. Velie, 60 N. Y., 106.
    2. Same—Evidence—Code of Civil Peo., § 829—Pebsonal tbansactions.
    Plaintiff was asked: “ From the date of your marriage to November 16, 1875, who provided the necessaries for the house and the support of the family?” Objection was made and overruled and the defendant excepted; witness answered. “We both did. He got some things and I got the rest.” No request was made to strike out the answer. Held, that the answer did not fall within the prohibition of the Code Civil Pro., § 829, as being evidence of. personal transactions with the decedent. •
    3. Pbactice—When motion to stbike out answebs should be made.
    The answer to a question not in itself objectionable on legal grounds if contravening a rule of evidence may be stricken out upon a motion to that effect, and such is the proper practice. Objection to a question based on the ground which such a motion would take, is not sufficient wheie a question at first is not suggestive of the objection.
    4. Costs against bxecutobs and administbatobs—Code Civ. Pbo., sec. 1836—R. S. pabt 2, chap. 4, sec. 37, abt 2.
    The court has power under Code Civ. Pro., section 1836, to award costs where the claim has not been presented within the time limited for the presentation of claims against a decedent’s estate. What the statute (R. S., part 2, chap. 4, § 37) intends is that the executors or administrators shall have a reasonable time to examine a claim presented, and that neither they nor the estate shall be subjected to cost, unnecessarily. Section 1836 has reference to the previous section, 1835, which speaks of an action brought against an executor or administrator in his representative capacity.
    Appeal from a judgment of the supreme court, general term, fifth department, reversing a judgment of the Monroe county special term, entered upon a report of a referee.
    The plaintiff presented a claim against the estate of the deceased to the defendant as administrator, which, being disputed, was, by stipulation made between them, referred under the statute.
    
      Horace L. Bennett, for app’lt; Quincy Van Voorhis, for resp’t.
    
      
       Affirming 2 N Y. State Rep., 175.
    
   Gray, J.

By reference to the testimony we find sufficient to sustain the findings of the referee as to the mak-. ing of an agreement between the plaintiff and the intestate, her deceased husband, at the time of their marriage, by which he was to pay to her $300 a year, and she was to provide, at her house, in which they were to reside, everything necessary for a living for them both during life. Except for the time intervening between November 16, 1874, and June 9, 1876, when the plaintiff’s pa* of this agreement was assumed and carried out by her son, the deceased was provided for according to the original arrangement; but he had only contributed the equivalent, in supplies and cash, of eighty dollars a year to the plaintiff, and the referee found that there was a liability growing out of this default against decedent’s estate of $2,400.

The admissions of the deceased as to what was his agreement with the plaintiff were proved by witnesses to whom, or in whose presence and hearing, they were made. Two of the witnesses had, during the life-time of the deceased, been called in as arbiters in disputes arising between deceased and plaintiff and with her son concerning the question of the fulfillment by him of his obligations. Their evidence is valuable; not from their character as arbitrators, or because of their decision as such, but as that of persons unconnected with the parties, who heard the statements of the deceased and might be expected to testify reliably concerning the transactions. The finding as to the arbitration was quite unnecessary and was immaterial to the conclusion, but its presence is not fatal to the trial.

According to this evidence, the deceased at no time denied his obligation to pay to plaintiff the sum originally agreed upon, but what he claimed was that in addition to the eighty dollars a year which he had only been contributing in money and supplies towards the support of the household, he had done chores and work about plaintiff’s place which were equivalent to the difference between what he had been paying and what he had agreed to pay.

The contract made with Brown, plaintiff’s son, under which for some nineteen months he undertook the furnishing of supplies to this household and received from the deceased the $300 a year does not affect the question of the liability of the deceased. It was a temporary expedient to which plaintiff was a party and for the execution of which she rendered herself liable. When it ceased by mutual consent, husband and wife resumed their original contractual relations, as the evidence shows and as he stated to or in the presence of some of the witnesses. By its terms it was intended as a “supplement” to an ante-nuptial agreement in writing relating to their respective estates, and was the reduction to writing of- the verbal agreement which we have mentioned. It did not have the effect of canceling the intestate’s engagement or of extinguishing his liability towards his wife.

A careful examination of the case satisfies us that the referee did not lack support in the evidence for finding as he did as to the existence of the contract, its performance by plaintiff and the non-performance by the deceased, and we pass to the consideration of some important questions argued by the appellant in opposition to the plaintiff’s right to maintain this judgment.

The appellant urges that the claim was barred by the statute of limitations. We cannot agree in this view, inasmuch as the payments in every year till the spring of 1879 by the intestate prevented the statute from running. The case seems to fall fairly within the principle laid down in Smith v. Velie (60 N. Y., 106); which was a case founded on a claim for services rendered to deceased during many years previous to his decease. G-rover, J., held that the claim at any and at all times for previous services was an entire account, and that but a single action could have been maintained thereon against the defendant, and that a payment upon the balance due the claimant took the entire balance out of the operation of the statute. In that case the intestate had made payments in every year of various sums and of articles of goods to the claimant, who was his housekeeper, and such were considered as applications upon the balance he owed her, as her services were continuous.

The appellant insists that there was an error in the reception of evidence. The plaintiff was asked : “From the date of your marriage to November 16, 1874, who provided the necessaries for the house and the support of the family ?” This question was objected to as being within the provisions of section 829 of the Code of Civil Procedure ; the objection was overruled and the defendant excepted. The witness answered : “We both did it; he got some things and I got the rest.” We do not think the question was open to the objection that it necessarily called for her version of transactions between herself and decedent. In fact nothing was deducible from the mere question as to the person or the transaction. The answer to a question not in itself objectionable on legal grounds, if contravening any rule of evidence, may be stricken out upon a motion to that effect, and such is the proper practice ; and an objection to a question based on the ground which such a motion would take, is not sufficient where the question itself is not suggestive of the objection. But we do not think the answer falls within the prohibitory rule of the statute as to evidence of personal transactions with a decedent. It does not really, or by ordinary construction, involve such a personal transaction between plaintiff and the intestate.

- It does, of course, involve testimony that the decedent did provide necessaries for the support of the family; but not that it was the consequence of any agreement or arrangement at the time with plaintiff. It is the statement of a fact of which the witness had knowledge, not of a transaction between her and the deceased. Further, it is clear that the answer was in favor of the defendant, and he was not prejudiced or aggrieved by it

The only remaining point which we think should be mentioned is the appellant’s claim that it was error to award costs and disbursements to the claimant at special and general term. By section 37 of article 2, chapter 4, part 2, of the Revised Statutes, it is provided that upon a reference, under the statute, of a claim presented to an executor or administrator against the estate of the decedent, the proceedings shall be the same as in an action in which the court might by law direct a reference, and the court, to whom the referee reports, may adjudge costs as in an action against executors.

Under section 1836 of the present Code, appellant argues that costs may only be awarded in such a case as this, where the claim had been presented within the time limited for the presentation of claims against the intestate’s estate, and that, as this claim was not presented till after that time, the court had no power to award costs to this claimant.

In Field v. Field (77 N. Y., 294), it was held that “the notice for the presentation of claims is for the protection of executors and the estates which they represent, and there is no legal obligation to give it at all.”

What the statute intends, and, as we think, has provided for, is that the executors or administrators shall have a reasonable time to examine the claim, and that neither they nor the estate shall be subjected to costs unnecessarily. Section 1836 of the Code of Civil Procedure has reference to the previous section 1835, which speaks of an action brought against an executor or administrator in his representative capacity. The present case is that of a special proceeding under the statute where the determination of the matter was referred by the consent of both parties, and is not controlled by section 1836.

While the circumstances connected with the growth of this claim may be such as to deprive it of any particular force as an appeal to the sympathies, we are not at liberty to disregard its foundation in a legal right.

We have not overlooked any part of the very ingenious argument of appellant's counsel, and, for the reasons we . have stated, the judgment appealed from should be affirmed, with costs.

All concur.  