
    DRYER v. BROWN
    
    N. Y. Supreme Court, Fifth District, Special Term;
    
    
      July, 1889.
    1. Costs ; disputed claim, against an estate, tried as an action.] Upon. a reference under the statute of a disputed claim against an estate, the parties stipulated that the complainant should serve a complaint, setting forth her claim, and the defendant should serve an answer in the same manner, and subject to the same rules of law as though the action was pending on the service of a summons, and the cause-be tried with the same force and effect as though it was an action, excepting the subject of costs. After trial, judgment was entered for plaintiff, but without costs. On appeal, the General Term, reversing the judgment, ordered the costs to abide the event. Held, that while the condition imposed as to costs to “ abide the event”' was susceptible of different constructions, by reason of the peculiarity of the stipulation, yet on a motion to amend the answer, the same terms should be imposed as a condition to the amendment as if the rule as to costs in an action was fully applicable to the-case, and therefore all costs and disbursements from the commencement of the action until the argument of the motion, including-costs of the motion, should be paid.
    2. Discovery and inspection; letters relating to notes in suit.] Where, in an action based on certain promissory notes alleged to have been executed by defendant’s testator, the defense set up was that the notes were forgeries, and a motion was made by defendant for the discovery of certain letters of deceased written to plaintiff, which might tend to show the character of the notes, the court refused to grant the application, but directed a deposit of the note itself' with the clerk.
    Motion by defendant for leave to amend answer, and for leave to inspect notes and letters in the hands of plaintiff.
    The plaintiff, Emma E. Dryer, set up a claim against the-estate of Harvey Barnard, of whom defendant, Elon G. Brown, is the sole surviving executor, on four promissory notes, alleged to have been executed by the deceased. The proceeding was originally a reference, under the statute, of a disputed claim against an estate. Then it was stipulated between the parties that the complainant should serve a complaint setting forth her claim, and the defendant should serve an answer in the same manner, and subject to the same rules of law as though an action xvas pending upon the service of a summons, and the cause should be tried with the same force and effect as though it xvas an action, excepting the subject of costs. A complaint and an answer were served. The answer denied the allegations of the complaint, and also set up that the signatures to the notes were not the genuine signatures of the deceased, and that each of the said notes was void and without consideration. The case was referred by agreement, and xvithout consent of the surrogate, to a different referee from the one originally appointed, but with the approval of the first referee. The referee found for the plaintiff in the sum of $10,676. Judgment was entered upon the report for the amount found by the referee, but without costs. On appeal, the General Term reversed the judgment, and ordered a new trial, with costs to abide the event. The court expressed doubt whether the stipulation did not change the nature of the proceedings, and whether such stipulation would bind the persons interested in the estate to the extent of waiving the defense of the statute of limitations, and recommended a motion for leave to serve amended pleadings. This motion was therefore made to serve an amended answer, setting up the statute of limitations, and also for a discovery and inspection of certain letters written by the deceased to plaintiff, and which might tend to show the nature of the notes in suit.
    
      E&ward D. Mathews, for the defendant and the motion.
    
      Sayles, Searle <& Sayles, for the plaintiff, opposed.
    
      
       See modification of this decision by the general term, post, page 144
    
   Williams, J.

If this was in fact an action, and not a reference under the statute of a disputed claim against an estate, the rule as to costs would then be clear, and I should have no question as to the terms to be imposed as a condition of the proposed amendment of the answer. The difficulty arises out of the peculiar terms of the stipulation entered into between the parties, which seems to make the case an action as to everything excepting costs, and to leave the question of costs to be determined as though the case were still a reference under the statute ; and in this condition of things it is not quite clear what the effect of the decision by the General Term as to costs is—what is meant by the words, costs to abide event.” Whether to abide event means to abide the final direction by the court as to costs, or the final result as to the recovery of the claim. By reason of this uncertainty resulting from the stipulation of the parties, I do not think the amendment proposed should be allowed without clearly protecting plaintiff. This defense might have been alleged in the defendant’s answer when originally made. If the stipulation had not been made, the defense could have been urged without a formal statement of it in a pleading. When the parties made the stipulation they evidently, for some unaccountable purpose, saw fit to change the nature of the casé and provide the .issues should be made up by pleadings with as much formality as in an action. Therefore it is very likely necessary this defense should be in the answer, in order to be urged by the defendant. It is not quite apparent to me why this defense was not originally put in the answer. I should think it was not then understood to be available, by reason of payments endorsed upon the notes which were not, perhaps, upon the trial, proved to have been made, though endorsed. While I am inclined to allow the amendment to be made, I think I should not permit it except upon the same terms I would impose if the rule as to costs in an action was fully applicable to the case. Such terms would be, all costs and disbursements, as in an action, from the commencement of the first trial, until the present time, including $10 costs of this motion. These costs should be paid as a condition of being allowed to amend, and within twenty days from the date of the service •of a copy of the order with notice of its entry.

The note upon which plaintiff’s claim is founded, should, ■at a convenient time before the new trial begins, be deposited with the county clerk, or some one agreed upon by the parties, so the defendant can examine them and have them •examined by his witnesses. An order to this effect should be made. If the counsel cannot agree upon its terms, I will have to settle its form myself.

It does not seem to me the court should order any dis •covery as to the letters written by the deceased, in custody of the plaintiff (41 Hun, 603 ; 43 Id. 95).

An order in accordance with the suggestions herein made will be proposed, and agreed upon by counsel as to form • •and submitted to me for signature.  