
    Stephen M. Hoye, Plaintiff, v. Mary Flynn et al., as Executors, etc., of John Flynn, Deceased, Defendants.
    (Supreme Court, Kings Trial Term,
    March, 1900.)
    Costs — Against executors under Code Civ. Pro., § 1836 — Suit by creditor before executors’ time to offer to refer had expired.
    After rejecting a creditor’s claim against the estate of their testator, executors have six months less ten days in which to consent to refer it, and if the creditor sues before that time, he waives the costs to which, under section 1836 of the Code of Civil Procedure, he would otherwise have been entitled if successful in his action.
    Application for costs, under section 1836 of the Code of Civil Procedure, and also for an extra allowance.
    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 thirty-first, following.

Under section 1836, as amended in 1897, the defendant has five months and twenty days from the rejection of a claim to file 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.

The motion for costs and an extra allowance must, therefore, be denied.

Motion denied.  