
    Mahlon B. Holcombe, Plaintiff, v. Charles F. Nettleton, as Executor of the Last Will and Testament of Charles F. Tabor, Deceased, Defendant.
    (Supreme Court, Essex Special Term,
    October, 1903.)
    Costs against an executor—Unreasonable resistance of the claim — Refusal, to refer — Waiver of costs.
    Payment of a claim against a decedent’s estate cannot be deemed to have been " unreasonably resisted or neglected ” by the executor where, upon a jury trial of an action subsequently brought to enforce the claim, it is reduced forty per cent.
    Where there is no proof in such an action that the defendant did not file the consent referred to in Code Civ. Pro. § 1836 at least ten days before the expiration of six months from the rejection of the claim nor any that the action was commenced within ten days before such expiration the plaintiff is not entitled to costs.
    
      Since the amendment made to Code Civ. Pro. § 1836 by L. 1897, ch. 469, a refusal to refer does not subject an executor to costs either personally or out of the estate he represents.
    Costs are waived by the plaintiff where he sues before expiration of five- months and twenty days from the date of the rejection of the claim.
    Motion by the plaintiff for certificate and order awarding him costs.
    Adelbert W. Boynton, for motion,
    Hewitt & La Duke, opposed.
   Spencer, J.

Costs in this action are claimed by the plaintiff on the ground that his claim against the estate of Charles F. Tahor, deceased, was unreasonably resisted or neglected by the defendant as executor, and that the defendant refused to refer the claim to a referee for determination. The claim, duly verified, was presented to the executor in February, 1902, and rejected March 26, 1902. Considerable negotiations ensued between the respective attorneys in regard to the selection of a referee, but failing to agree, this action was commenced to enforce payment. Since the amendment to section 1836 of the Code of Civil Procedure (Laws of 1897, chap. 469), a refusal to refer does not subject an executor to costs, either personally or as against the estate which he represents. I do not think this claim can be said to have been unreasonably resisted. ■ It was presented for the sum of $5,040. Hpon the trial, the jury awarded plaintiff the sum of $3,000. In the presence of such a reduction, it cannot be said that the defendant was not justified in resisting. The plaintiff in his complaint alleges that the defendant refused to stipulate' that said claim might be determined by the surrogate upon the final accounting of the defendant. Ho mention of this ground is contained in the notice of motion, but I think the notice is broad enough to include it. I have, however, searched the moving papers with some diligence and fail to find any proof in support thereof. There is no proof that the defendant did not file the consent referred to in section 1836, Code of Civil Procedure, and no proof .that the action was commenced within the ten days therein prescribed. In case the action was commenced before the expiration of the five months and twenty days after rejection, the plaintiff must be regarded as waiving his right to costs. Hoye v. Flynn, 30 Misc. Rep. 636; Hart v. Hart, 45 App. Div. 280.

The motion is, therefore, denied as to both of the grounds specifically mentioned in the notice of motion, the court not passing upon any ground not specifically mentioned therein.

Motion denied, with costs.  