
    Marie Schutz, Resp’t, v. Joseph Morette, as Executor, etc., App’lt.
    
      (Supreme Court, General Jerm, First Depan'tment,
    
    
      Filed November 16, 1894.)
    
    1 Executoes, etc.—Accouxt stated.
    The settlement or statement of an account or liability is sufficient to authorize a judgment against an executor in his representative capacity, in an action in which "the plaintiff claims to recover on an “account stated.”
    
      2. Same—Proof.
    Proof held competent to establish such settlement or statement.
    3. Pleading—Demurrer.
    Where the facts alleged in the complaint are sufficient to authorize a finding that the executor settled, or should be held to have settled or to have adjusted, the claim, the complaint will not be held to be bad on demurrer on the ground that it does not state facts sufficient to constitute a cause of action.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.
    
      John 8. Davenport, for app’lt; J. George Flammer, for resp’t.
   Follett, J.

An executor has power to settle an account or liability which it is claimed was incurred by his testator. If it be established that he has settled or stated such an account, it is sufficient to authorize a judgment against him in his representative capacity, in an action in which the plaintiff claims to recover on an “ account stated.” The fact that the executor has settled such an account or liability may be established by proof of an express promise on his part, by acts on his part and on the part of the plaintiff from which the law irrebuttably presumes an express promise, or by acts on the part of both from which the tribunal determining the issue of _ fact properly infers the existence of such a promise. The foregoing proposition are too well settled by authority and founded in reason to require the support of many authorities. Lambert v. Craft, 98 N. Y. 342; Magee v. Vedder, 6 Barb. 352; 3 Williams, Ex’rs, (6th Am. Ed.) 1772, 1940, and cases cited. The fact that a settlement by an executor of an account or claim is not binding on the heirs, next of kin, devisees, and legatees of a decedent lends no support to the proposition that the executor is not bound, and may dispute the claim.

A complaint will not be held bad on demurrer which is based on the ground “ that the complaint does not set forth sufficient facts to constitute a cause of action,” if the facts alleged (being admitted and unexplained by the demurrer) are süch as authorize the inference of a liability of the defendant, or in the case at bar, if the facts alleged are sufficient to authorize a finding that defendant settled, or should be held to have settled or to have adjusted, the claim. This action was begun April 17, 1894, by the service of a summons, and by a complaint, verified April 11, 1894, in which it is alleged that November 18, 1892, the plaintiff delivered to the defendant a verified statement of her claim against the defendant’s testatrix, a copy of which is set out in the complaint. If the statements contained in the verified claim are true, the testatrix, at the time of her death, was indebted to the plaintiff in the sum of $1,000. The claim is for personal services rendered by the plaintiff for the testatrix during some years, immediately proceeding her death. It is alleged, as before stated, that the claim is presented November 18,1892, nearly 17 months before this action was begun, during which time, it is also alleged, “ said defendant has had a reasonable opportunity for examination into the validity and fairness of the claim so presented. He has not disputed or rejected the same, and refuses to pay the sum, or any part thereof." This unexplained delay on the part of the defendant to take any action in respect to the claim is sufficient to authorize the inference that it .has been accepted by him as a liability of the estate, within the rule laid down in Lambert v. Craft, supra, the facts of which are more fully reported in 7 Civ. Pro. Eep. 364. _In that case the verified claim was presented June 1, 1863, and on the 30th of the same month proceedings were begun in the surrogate’s court requiring .the executor to show cause why he should not pay the claim: These facts being shown, and the further fact that the executor had taken no action whatever in respect to the claim, the surrogate’s court inferred the liability, and decreed payment, which adjudication was affirmed at general term (32 Hun, 466), and by the court of appeals (96 N. Y. 342). We think that, under the case last cited, the court would be authorized to infer from the unexplained facts alleged in the complaint that the defendant had acknowledged the liability of the estate for the claim presented. On the trial of this case, facts may be shown which will authorize the trial court to find that the defendant, under the circ umstances, ought not to be held to have conceded the liability of the estate for the plaintiff’s claim. The facts alleged are now admitted ; and although the defendant may be unable to deny them in his answer, or to disprove them on the trial, he may be able to give evidence of such explanatory facts as will leave the issue whether the defendant has settled the claim an open one for the determination of the tribunal before which the action shall be tried.

The interlocutory judgment should be affirmed, with costs, with leave to the defendant to withdraw his demurrer and to answer, upon the payment of costs.  