
    Samuel H. Coombs and Robert H. Wilson, Respondents, v. Herman Joerg, as Executor, etc., of Mary E. Loughran, Deceased, Appellant.
    Second Department,
    April 24, 1908.
    Evidence — presumption on failure to dispute bill rendered—rule as to executors.
    The rule that silence of a debtor after receiving a bill raises a presumption that liability is admitted does not apply in the case of executors to whom a bill is presented for services ' rendered to the testator during his lifetime. This because the reason of the presumption does not exist in that the executor has no personal knowledge of the justice of the account.
    Appeal by the defendant, Herman Joerg, as executor, etc., from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiffs, rendered on the 31st day of May, 1907.
    
      Charles F. Moody, for the appellant.
    
      Robert H Wilson, for the respondents.
   Jenks, J.:

Conceding that the hill of the plaintiffs was rendered to the defendant as executor of Mary E. Loughran, yet I think that the direction of the verdict for the plaintiffs was error. The hill was for services rendered to Mary E. Loughran. The plaintiffs contended that proof of the rendition of this bill to the defendant as executor, of his retention of the bill without question or criticism or positive action, and marked by a lapse of time, made out a prima facie case. The court so held, and directed a verdict on the failure of the defendant to offer proof in dispute of the facts which I have stated. As between the parties to the transaction — the original parties ” — the delivery of a bill by the creditor followed by the silence of the debtor may, when accompanied by a lapse of time, be prima facie evidence of the justice of the claim. This rule rests upon the principle of an admission implied from silence. But such silence must be the silence of knowledge. Shaw, Ch. J., in Commonwealth v. Kenney (12 Metc. 235), well discusses this element, saying that the principle of tacit admission depends on two facts; “ secondly, whether the truth of the facts embraced in the statement is within his own knowledge or not. * * * So, if the matter is of something not within his knowledge; if the statement is made by a stranger, whom he is not called on to notice; or if he is restrained by fear, by doubts of his rights, by a belief that liissecurity will be best promoted by his silence, then no inference of assent can be drawn from that silence.” But in the case of an executor, his own knowledge of the justice of a bill for services rendered to his testator cannot be presumed to exist, and hence the rule of implied admission should not have obtained in this case. (See Schutz v. Morette, 146 N. Y. 142.) I do not understand Matter of Callahan (152 N. Y. 320) to the contrary. The court, after saying that it had considered the general subject in Schutz v. Morette (supra), reiterated that mere silence of the executor, accompanied by lapse of time, would not preclude the executor from contest of the claim. And it further said : “ But the claim does not become established from mere silence of the executor or administrator.” The danger of the application of the principle of admission inferred from silence to the ease of the presentation of claims to an executor had been pointed out in a preceding paragraph of the opinion. The court but held in that case that when a claim has been presented and not rejected, and upon accounting no objection was made, then the surrogate could regard the claim as admitted. Such a condition is quite different from that presented by the mere rendition of a bill folloxved by silence whereupon an action is brought. When a claim is presented as such pursuant to the statute, the executor may require satisfactory proof thereof by voucher and by affidavit, and of no offsets, and he may enter into agreement for a reference thereof. If, however, it is not rejected or is not referred, but finally comes up on the accounting presented as a valid claim and then no objection is taken, much more can be inferred from the 'continued silence or omission of the executor than could be in the case of the mere presentation of a bill.

The judgment must be reversed and a new trial must be ordered, costs to abide the event.

Woodward, Hooker, G-aynor and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and nexv trial ordered, costs to abide the event. 
      
       See Code Civ. Proc. § 3718.— [Rep.
     