
    GUERNSEY v. CHEYNE.
    
      N. Y. Supreme Court, First District, Chambers ;
    
      February, 1887.
    
      Separate answer by co-executor nut served.] Under section 1817 of the Code of Civil Procedure—forbidding separate answers by different executors representing the same decedent, except by direction of the court,—an executor who was not served with summons, but who has appeared by counsel upon a reference of the cause, and participated in a trial of the issues raised by the answer of his co-executors, may be allowed, upon application to the court, to serve a separate answer raising new issues, upon terms, and without prejudice to the proceedings already had.
    
    Motion by defendant Postley for leave to serve a separate answer.
    Egbert Guernsey sued Hugh Cheyne, John Scott and Margaret S. Postley, as executors, and executrix, of Alexander F. Sterling, "deceased, for services alleged to have been rendered as the physician of the decedent, between July 1, 1882, and February 6,1885.
    The summons was served upon defendants Cheyne and Scott only, who answered, merely denying- knowledge or information sufficient to form a belief as to the allegations of the complaint, and the action was referred. The defendant Postley, appeared before the referee by counsel, and it was then objected that she could not appear because the summons had not been served upon her. The referee allowed her to appear, but confined the questions of her counsel upon the refer, nee to the issues made by the complaint, and answer of her co-defendants. After several hearing» before the referee, at which the defendant, Postley,' was represented by her counsel, who conducted the cross-examination of the plaintiff’s witnesses at considerable length, this motion was made by her for leave to come in and defend the action, and to interpose a separate answer, setting up in substance that the deceased was himself a physician, and that by the custom between members of the medical profession, the services in suit were rendered gratuitously.
    
      Brooke Postley, for the defendant, Postley, and the motion.
    
      Leicester Holme, for the plaintiff, opposed.
    
      
       Under the former statute, 2 R. S. 448, § 5,—containing provisions similar to those now.found in section 1817 of the Code, except the last clause of the section as to separate answers,—the irregularity of a separate answer by one executor without leave of court, was held waived by not moving to strike it out, or returning it, and the court say that “ whether executors can separate in their defenses in a case where no personal liability is sought to be enforced against them, may well be doubted.” Salters v. Pruyn, 15 Abb. Pr. 224.
    
   Lawrence, J.

It is provided by section 1817 of the Code of Civil Procedure that “ in an action or special proceeding against two or more executors or administrators, representing the same decedent, all are considered as one person, and those who arc first served with process, or first appear, must answer the plaintiff. Separate answers by different executors or administrators cannot be required or allowed except by direction of the court.”

In this case it appears that the executrix, who was not served, has appeared before the referee, and that her counsel has cross-examined the witnesses for the plaintiff at great length. It docs not appear that she did not know of the proceedings before the commencement of the trial, and it is quite apparent that her counsel has been the chief actor on the part of the defendants before.the referee. The answer which she proposes to interpose is in substance that the services alleged to have been performed by the plaintiff for the decedent were gratuitous, for the reason that the custom prevails among members of the ■ medical profession in ■ this city to attend each other without charge.

It seems to me that the proper disposition to make of this ease, is this : Upon the payment of costs of motion the executrix should be allowed to serve her answer forthwith. If a reply should be necessary the plaintiff should be allowed to serve the same within five days after the service of the answer, and as the executrix has had the benefit of counsel, in view of the provisions of the section of the Code above cited, the testimony and proceedings before the referee, heretofore taken, should be allowed to stand; the reference, if so desired by the plaintiff, must proceed on two days’ notice, and be continued from day to day, unless, in the exercise of his discretion, the referee shall otherwise direct.  