
    In the Matter of the Estate of Samuel Lyman, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 17, 1891.)
    
    Executobs and administbatobs—Limitation—Judgments against testatoe.
    A claim arising upon a judgment recovered against the testator or intestate is not barred by the statute of limitations upon a refusal to refer, so as to deprive the creditor of the right to compel the executor to-account.
    Appeal from an order of the surrogate of the county of New York, directing the administratrix of Samuel Lyman, deceased,, to render and file her account, on the petition of the Stuyvesant Safe Deposit Company, claiming to be a creditor of said estate.
    
      Sackett & Bennett, for administratrix, app’lt; Miller & Wells, for S. S. D. Co., resp’t.
   Lawrence, J.

The Stuyvesant Safe Deposit Company alleges in its petition that the estate of the deceased is indebted to it on two certain judgments, recovered in the court of common pleas of the city and county of New York, by one De Forest Fox against, the said Samuel Lyman, in his life tim^, and that the petitioner is the owner and holder of said judgments by virtue of assignments thereof duly made by said Fox to said petitioner, and is a creditor of said deceased.

The answer to the petition is, that the administratrix, more than six months after letters of administration had been granted herein, under an order of the surrogate’s court, duly advertised for claims, once a week for the period of six months; that the proof of claim of the petitioner was presented to the administratrix, who disputed the same and gave notice thereof to the petitioner, which notice contained an offer to refer said claim under the statute; that said offer has not been accepted, and that more than six months have expired since said claim was disputed, and that said claimant has. not commenced an action for the recovery of said claim, wherefore the administratrix claims that the claimant is barred from maintaining this action.

It is further alleged, as a separate defense, that Fox held certain collateral security, belonging to the decedent, from the sale of which he realized a very large sum of money, for which neither he nor petitioner has accounted, but which was applicable to the payment of said claim, if any existed.

The surrogate ordered the administratrix to account. It was held by the court of appeals in McNulty v. Hurd, 72 N. Y., 518, that a judgment against a deceased person, although disputed or rejected by his personal representatives, need not be sued over in order to authorize a decree for its payment by the surrogate. If this be so, it is difficult to see how the claim arising upon the judgment can be barred by the statute of limitations, upon a refusal to refer.

In McNulty's case, Church, Oh. J., says: “ We think that there-is a distinction between judgments against the testator or intestate- and other claims. A judgment is an adjudication of the rights of the parties in respect to the claim involved.

“ It imports absolute verity. It cannot be disputed in the sense contemplated by the statute any more than a judgment against, the administrators. In the same sense it is final and conclusive. The statute recognizes a distinction by giving priority to judgments over each other according to date of recovery and over other debts. Section 27. This right of priority might be interfered with if a new judgment was necessary in case of dispute, and thus a right secured by statute might be seriously impaired or entirely destroyed by the construction claimed. We are of opinion, therefore, that a judgment against a deceased, even if disputed or rejected by executors or administrators, need not be sued over in order to authorize a decreee for its payment by the surrogate.”

It is doubtful whether the other matters set up by way of defense could be tried by the surrogate. Stilwell v. Carpenter, 59 N. Y., 414; McNulty v. Hurd, 72 id., 518. Even if cognizance could be taken of them, an account between the parties would still be necessary.

We are of the opinion, therefore, that the order of the surrogate should be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.  