
    (30 Misc. Rep. 75.)
    SPENCER v. HALL.
    (Otsego County Court.
    December, 1899.)
    1. Justice op the Peace—Jurisdiction—Claims against Estates.
    A claim against decedent’s estate for $41.72, 'which had been presented to an administrator three times for allowance, to which the administrator replied twice that he would consider the matter and let claimants know, and claimed an offset on the account, and the third time that “he guessed claimants would have to sue the account, for he dared not pay it, in the shape his father’s accounts were,” was rejected, within the meaning of section 2863, Code Civ. Proc., giving a justice of the peace jurisdiction of a claim against an estate for less than $50 which has been presented and rejected.
    3. Same. ■
    Under Code Ciy. Proc. § 2803, giving a justice of the peace jurisdiction of a claim under $50 which has been presented and rejected, a justice has jurisdiction of a suit on a claim for $40.86, not legally-bearing interest, which has been presented, without claim of interest, to the administrator, and rejected, although the complaint was for $41.72 with interest, which made it more than $50.
    :3. Interest—Open Accounts.
    A claim between parties which has not been finally settled, nor in any way treated by the parties in a suit to recover the amount as an account stated, does not bear interest.
    4. Pleading—Issues—Proof—Variance—Waiver.
    . Unless objection is made by defendant to a variance between the amount of á claim presented against administrator, rejected, and proved on the trial, and the amount claimed in the complaint, it will be deemed waived by the defendant.
    5. Justice op the Peace—Jurisdiction.
    Under Code Civ. Proc. § 2803, giving a justice of the peace jurisdiction of claims against estates amounting to less than $50, a claim presented to an administrator and rejected is competent evidence to determine the question of jurisdiction.
    =6. Evidence— Competency—Admissions.
    In an action against an administrator on a claim against the estate of decedent, the statements and admissions of administrator as to the correctness of the claim, and his willingness to pay it if he has sufficient funds, if made in the transaction of business as such administrator, are competent evidence against him.
    "7. Trial—Verdict.
    In an action on a claim against the estate of a decedent to which a set-off was claimed, where the complaint prayed for more than the amount of the claim as presented to the administrator and proved at the trial, the verdict of the jury “for plaintiff for all his claim” must be taken to mean the claim as presented to the administrator, and a refusal of the offset:
    Appeal from justice court.
    Action by Andrew Spencer, Jr., against Charles Hall, administrator, -etc., of George Hall, deceased, on a claim against the estate of deceased. From a verdict and judgment for plaintiff, defendant appeals.
    Modified.
    Edson A. Hayward, for appellant.
    Andrew Spencer, Jr., in pro. per.
   BAJRITUM, J.

It is alleged in the complaint that the decedent, George Hall, was at the time of his death indebted to Spencer & Smith in the sum of $47.52, less the sum of $5,80 credited thereon, and interest from the 6th day of February, 1895, for goods sold and delivered; that the plaintiff became the owner of the claim October 14, 1897; that thereafter he presented the claim, duly verified, to the defendant; that the defendant admitted that the claim was just and correct, but claimed that the decedent’s estate had an offset against the same, and thereafter rejected and refused to allow the same,—and demands judgment against the defendant, as such administrator, for $41.52, with interest and costs. The answer denies all the allegations of the complaint, alleges payment, and sets up a counterclaim.

Andrew Spencer, one of the assignors through whom plaintiff obtained title to the claim in suit, testified that on the 5th day of February, 1895, the defendant came to the store of Spencer <& Smith, and brought accounts amounting to $5.80 against the firm of Spencer & Smith and the individual members of said firm; that they looked over the accounts of George Hall, and agreed as to balance due on book, $46.66; that he then, in the presence of the defendant, made entry and figured the balance; that the defendant said the account was all right, and, if he had money enough, he would pay it, but that he did not know whether he would have money enough to pay debts. The evidence shows that the balance, as figured by Andrew Spencer in the presence of defendant, and entered in the firm book, was §40.86, and that the plaintiff became the owner of the demand on the 14tli day of October, 1897. The evidence shows that about the 1st of February, 1898, plaintiff presented the account to the defendant; that the defendant then said that he did not question the account, and that, if he could collect what was due the estate, he would pay it; that a short time thereafter the defendant said to plaintiff that he understood that there was an offset to the account, and that he would see about the matter, and let plaintiff know. About March 1,1898, plaintiff presented a verified statement of the account, as it appears in the ledger of Spencer & Smith, to the defendant, and told him that, if he decided to object to the account, he would refer it, to which the defendant replied that he would consider the matter, and let plaintiff know. Thereafter the parties had several conversations, in which the ■defendant did not give the plaintiff any definite decision, until about the 1st of August, 1898, at which time he said to plaintiff, I guess you will have to sue the account, for I do not dare pay it, in the shape my father’s accounts are.” This action was commenced on the 16th day of August, 1898. The jury rendered their verdict in the •following language: “We find verdict for plaintiff for all his -claim,” The justice thereupon entered judgment in favor of plaintiff for $40.86, and interest thereon from February 6, 1895, $10.49,—in all, $51.35 damages.

The appellant claims that plaintiff’s .claim was not for less than :$50, and that it had not been rejected by the administrator, by reason •of which the justice did not have jurisdiction of the action, and that the evidence did not establish a cause of action against the defendant.

Section 2863 of the Code of Civil Procedure provides that:

“A justice of the peace cannot take cognizance of a civil action. * * * (5) Where the action is brought against an executor or administrator as such, except where the amount of the claim is less than the sum of fifty dollars, and the claim has been duly presented to the executor or administrator and rejected by him.”

The action was not brought upon an account stated. Neither party claimed upon the trial that the effect of the negotiations between the defendant and the different owners of the claim was to state the account. The action having been tried by both sides upon the theory that it was upon an open account, it is not necessary to determine whether the action might have been brought upon an account stated.

There is evidence sufficient to show that the defendant claimed to plaintiff that the estate had an offset, and stated to plaintiff that he would have to sue the account, which was a rejection of the claim as presented by the plaintiff.

The plaintiff presented to the defendant on the' 1st of March, 1898, a verified statement of the account as it appears on the books of Spencer & Smith, which the evidence shows was for the sum of $40.86. There is no evidence tending to show that plaintiff demanded interest on the $40.86 at the time he presented it to defendant, nor at the trial. The jury clearly intended, in rendering a verdict for the plaintiff for the “full amount of his claim,” to refuse to allow the offset claimed by defendant, and to find for the plaintiff the amount of the claim which he had presented to the administrator,—$40.86. i’heir attention does not appear to have been called to any other or different claim. The only controverted issue presented to them was whether the offset should be allowed. It would have been better practice to have sent the jury to their room, with instructions to state their verdict in figures; but I do not think the error requires a reversal, as there can be no doubt as to what was intended by the verdict. A verdict for the plaintiff for “the full amount claimed” was sustained in Goodman v. Steinfeld, 20 Misc. Rep. 224, 45 N. Y. Supp. 1141.

In the case at bar, as presented to the jury, the plaintiff was not entitled to interest upon the account. His theory was that the claim had been rejected by the administrator, and an offset claimed. Interest was not demanded in the verified claim presented to the administrator, and rejected by him. While the evidence shows that the administrator admitted, in some conversations that plaintiff’s claim was correct, and he seems to have presented for allowance all the offset which he then claimed, yet he eventually claimed a further offset, and the plaintiff did not question his right to present his claim to the consideration of the jury. The case, as presented, disclosed that the accounts between the parties had not been finally settled. The plaintiff was not entitled to recover interest. Benedict v. Sliter, 82 Hun, 198, 31 N. Y. Supp. 413; Smith v. Velie, 60 N. Y. 111; In re Hartman, 13 Misc. Rep. 487, 35 N. Y. Supp. 495. The amount which plaintiff was entitled to recover was less than $50. It had been rejected by the administrator. The justice had jurisdiction of the action, unless the amount demanded in the complaint, $41.52, with interest from February 6, 1895 (being a few cents over $50 at the time of the commencement of the action), is fatal to his jurisdiction. If the claim presented to the administrator and proved on the trial had been one upon which the plaintiff was entitled to interest sufficient to bring the amount up to $50 at the time of the commencement of the action, there would be grave doubt of the justice’s jurisdiction. But the proof shows that plaintiff presented to the administrator a" claim upon which he did not demand interest when presented, and which did not legally bear interest, and even if it bore interest from February 6, 1895, to the time of the commencement of the action, would not have amounted to $50. The point was not raised by way of objection to the evidence that the claim presented and rejected, and proved upon the trial, was not for the same amount as the claim alleged in the complaint. The variance between the pleading and the proof must be regarded as waived by defendant. If objection thereto had been distinctly raised, the plaintiff could have amended his complaint. The parties consented to try a claim of which the justice had jurisdiction. It had been presented to the administrator and rejected by him, and it was for less than $50. I think that, under the circumstances appearing in this case, the demand in the complaint for more than $50 does not vitiate the judgment. The language of section 2803 makes the claim presented to the administrator competent evidence to determine the question of jurisdiction. The claim which has been presented and rejected is the only claim of which the justice can take cognizance. The amount of the claim presented and rejected being for less than $50, the justice had jurisdiction of the subject-matter of the action.

Plaintiff relied entirely upon the statements and admissions of the defendant to prove his claim. Defendant stated to Andrew Spencer, while the firm of which he was a member still owned the account, that the account was all right. He agreed as to the balance due upon their books, after allowing the offset then claimed, $5.80, as $40.80, and said he would pay it if he had money enough. He told the plaintiff, after he became the owner of the claim, that he did not question the account, but he claimed a further offset. These declarations and admissions were made after he had examined the books of Spencer & Smith, and while he was engaged in the transaction of business as such administrator, and were competent evidence on the trial, and sufficient to sustain a verdict for the plaintiff. Abb. Tr. Ev. 58; Forsyth v. Ganson, 5 Wend. 558; Finnern v. Hinz, 38 Hun, 465; Church v. Howard, 79 N. Y. 419; Whiton v. Snyder, 88 N. Y. 306; Davis v. Gallagher, 124 N. Y. 492, 26 N. Y. Supp. 1045; Potter v. Greene, 3 N. Y. Supp. 605.

Judge Miller said in Church v. Howard, 79 N. Y. 419:

“Although the cases cited relate more particularly to the admissions or declarations of a co-executor or a co-administrator as against an associate, and the precise question now presented was not decided, it would appear to follow, as a logical sequence of the decisions, that the admission made by a sole administrator or executor, or of all of them together, would be competent evidence, and obligatory, if such admission was made while engaged in the performance •of some act relating to the estate. The act should be such as called for and made the declaration pertinent, and the declaration should accompany such act, so as to constitute a part of the res gestae. When such is the case, the admissions of an administrator may, we think, bind the estate.”

The judgment must be modified by reducing the same to $40.86, the amount of the claim as presented to the administrator, and as modified affirmed, with $10 costs to the appellant.

Judgment modified, and as modified affirmed, with $10 costs to appellant.  