
    Matter of the Estate of John W. Warrin, Deceased.
    
      (Surrogate’s Court, New York County
    
    
      Filed August, 1899.)
    Jurisdiction — Claim Admitted by Administrator, But Rejected by Referee — Opening Reference on Terms.
    While the surrogate has no power, except by stipulation, to try a “disputed claim of a creditor, yet where the claim has been allowed by the administrator and a referee has rejected the claim at the instance of another creditor, and the administrator neglected to support the first claim by affirmative proof at the reference, the claimant, though not appearing at the reference, will be permitted to open the same and give proof of his claim, on reimbursing objecting creditor for referee’s fees paid.
    Motion by a creditor whose claim was disallowed by the referee upon the accounting in this matter, and who, although cited, failed to appear, in the proceeding, for a rehearing.
    Charles C. ¡Nadal, for petitioner; Stickney, Spencer & Ordway, for creditor; Holmes & Adams, for contestant.
   Fitzgerald, S.

A creditor whose claim was disallowed by the referee upon the accounting in this matter, and who, although cited, failed to appear in the proceeding, now seeks to be allowed to appear therein, and be adjudged entitled to receive a pro rata, payment on account of his claim. The claim was admitted by the administratrix, but the legality of her action was questioned by one of the other creditors, who filed -objections thereto, and, upon the hearing, the referee sustained .the objections, and found that the claim was not a valid charge against the estate or payable out of it. The administratrix .submitted no evidence whatever to sustain the claim or as to .the circumstances which induced her to admit it, but rested her contention as to the right of the claim to be treated as a valid demand against the estate solely upon the fact that she had admitted its validity, and insisted that the burden of proving that her action was not proper was upon the objectant. In this she was in error, as the referee properly held, and he •disallowed the claim. Estate of Davis, Surr. Decs., 1892, 82. The action of the claimant, in failing to appear in the pro•ceeding, to protect his demand, was not wholly inexcusable under the circumstances, as he might not unreasonably have felt that he was entirely safe in relying on the admission of the administratrix of the validity of his claim" as an assurance that it would be paid, and I do not think that his action, or the mistaken position taken by the administratrix upon the trial in respect to the claim, should prevent further inquiry ■as to its legality. , While this court has no power, except upon the written consent of the parties, as prescribed by the statute, to try a disputed claim of a creditor, yet where the claim has been allowed by the representative of the estate, as in the present instance, and the propriety of such allowance is assailed by the parties interested in the estate, either as creditors or •otherwise, in pursuance of the right which the law accords to -them to so do (In re Strickland’s Estate, 5 N. Y. Supp. 851; Matter of Perry, 5 Misc. 149), it seems to me that the creditor, •acting in support of the action of the representative, either by the assent of the latter, or possibly independent of it where the representative is derelict in upholding or justifying his -own action, has a right to be heard in support of the claim'. Under the circumstances, I think this matter should be again referred to afford the administratrix an opportunity to submit further evidence in respect to the claim in question, and that the moving party herein should be allowed to appear upon such reference and take such proper action in aid of that of the administratrix as he shall deem necessary to protect Ms rights. This disposition of the matter is, however, made upon condition that the referee’s fees, which have been paid by the respondent, be reimbursed to Mm by the applicant. ¡None of the exceptions taken by the accountant to the report of the referee are tenable. In view, however, of the circumstances under wMch the referee sustained the objection to the allowance of the claim of the creditor, whose motion for a rehearing respecting such claim is decided simultaneously herewith, and for the reasons mentioned in such decision, I have, as stated therein, concluded to order a rehearing as to the claim.

Decreed accordingly.  