
    (30 Misc. Rep. 636.)
    HOYE v. FLYNN et al.
    (Supreme Court, Trial Term, Kings County.
    March, 1900.)
    Action against Executor—Costs—Waiver.
    Under Code Civ. Proc. § 1836, entitling a successful claimant to costs in an action against an executor, if the executor does not consent to have the surrogate court hear the claim “at least 10 days before the expiration of the 6 months from the rejection,” a claimant waives costs by commencing action within less than 5 months and 20 days after the executor had rejected his claim.
    Action by Stephen M. Hoye against Mary Flynn and others, as executors of the estate of John Flynn, deceased. Application by plaintiff for costs and an extra allowance.
    Denied.
    Edward L. Somerville, for plaintiff.
    John C. Judge, for defendants.
   CHESTER, J.

This action has been tried, resulting in a verdict for the plaintiff, who now makes an application for costs, under section 1836 of the Code of Civil Procedure, and also for an extra allowance. It appeared on the trial that the plaintiff’s claim was presented to the executors, and that they served a written notice of rejection thereof upon the plaintiff, bearing date October 19, 1898, which notice was received by the latter on October 31st following. Under section 1836, as amended in 1897, the defendant has 5 months and 20 days from the rejection of a claim to üle the consent provided for in section 1822. The plaintiff did not wait for the expiration- of that time before beginning his action, but commenced it on December 27, 1898, a trifle less than two months after the rejection of the claim. The commencement of the action before the expiration of that time operated as a waiver by the plaintiff of costs, if successful in his action. Hart v. Hart, 45 App. Div. 280, 61 N. Y. Supp. 131. The motion for costs and an extra allowance must, therefore, be denied.

Motion denied.  