
    Sarah V. Denise, appellant, v. Daniel S. Denise, admr., respondent.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 17, 1886.)
    
    1. Practice—Decedent’s estate—Reference of disputed claims against —Code of Civil Procederé, § 1002.
    A reference of a disputed claim against an estate is a special proceeding, and section 1002 of the Code of Civil Procedure as to motion for a new t ial does not apply thereto, and therefore upon a motion for confirmation of the referee’s report and upon a motion for a new trial, the court may review an error in ruling upon the law. (Young v. Cuddy, 23 Hun, 249, not followed).
    2. Same—Evidence—Code of Civil Procedure, § 829—Personal transaction.
    In a suit by a wife against her husband’s administrator upon an ante-nuptial agreement to pay her $300 per year, in consideration that she should provide at her furnished house, in which they were to reside, sufficient necessaries for both during life; plaintiff was asked as a witness: “ From the date of your marriage to 1874, who provided the necessaries for the house and the support of the family?” Objection was made and overruled, and witness answered: “ We both did it; he got some things and I got the rest.” No request was made to strike out the answer. Held, that the question did not necessarily call for a personal transaction with the deceased, and the answer contained an admission in favor of defendant’s interest.
    3. Same.
    Section 839 of the Code of Civil Procedure cannot he invoked to question an allegation of error when the question objected to does not call for an answer prohibited by said section, although the answer falls within such prohibition, unless a motion to strike out such answer is promptly made.
    Appeal from an order of the Monroe special term denying plaintiff’s motion for confirmation of referee’s report, and granting defendant’s motion for a new trial.
    
      J. & Q. Van Voorhis, for appellant, Sarah V. Denise.
    
      Horace L. Bennett, for respondent, Daniel S. Denise, as administrator, etc.
   Haight, J.

The appellant presented a claim against the estate of Denise Denise, deceased, "which was rejected by the defendant as administrator, and duly referred under the statute. The referee found as facts that on the 23d day of August, 1866, Denise Denise was a widower of the age of sixty-seven years; that he then entered into an agreement with the plaintiff whereby, in consideration of their intermarriage, it was mutually agreed that each should hold, control and dispose of the real and personal property which he or she respectively had at the time of the marriage, or might thereafter acquire, the same as if the marriage had not taken place, except that in case she survived him, she was to receive one thousand dollars from the estate; that on that day the parties intermarried, and that, at about the ■date of the marriage,, the parties entered into a further verbal agreement by which Mr. Denise agreed pay to Mrs. Denise three hundred dollars a year, in consideration" that she provide at her furnished house in Spencerport, in which they were to reside, everything necessary for a living for them both during fife; that, pursuant to that agreement, he went to five with her in her house at Spencerport, and was supported by her until the 11th day of April, 18'79, except for the period of about nineteen months; that each year he paid her some money and furnished some of the provisions, amounting in the aggregate to eighty dollars a year, and no more; and, as a conclusion of law, found that she was entitled to recover of the defendant, as administrator, the ■sum of $2,400. Motion was made on the part of the plaintiff for a confirmation of the report, and at the same time a motion was noticed on the part of the defendant for a new trial. The special term granted the motion for a new trial,on the ground, as appears by its memoranda, that the referee erred in the admission of the evidence.

From such order the plaintiff now appeals to this court.

She contends, in the first place, that under section 1002 of the Code the special term had no power to review the report of a referee upon an allegation of error in a finding of fact or ruling upon the law; that under section 1346 of the Code an appeal could now be taken from the judgment.

The reference of disputed claims against the estate of a deceased person under the statue is a special proceeding. Hoe v. Boyle, 81 N. Y., 305.

The motions for new trial provided for by section 1002 evidently have reference to motions in actions and have no application to special proceedings.

Section 1346 provides “that an appeal may be taken to the general term of the supreme court or of a superior city court from a final judgment rendered in the same court, or of a superior city court, as follows:

First. Where the judgment was rendered upon a trial by a referee or by the court, without a jury, the appeal may be taken upon questions of law, or upon the facts, or upon both.”

We are aware that the second department in the case of Young v. Cuddy (23 Hun, 249), has held that under this section an appeal may be taken from a judgment rendered in this proceeding, but the correctness of this conclusion may be questioned in view of the fact that sub-division 20 of section 3343 of the Code provides: “The. word ‘action ’ refers to a civil action; the word ‘judgment’ to a judgment in such action; the term ‘ special proceeding ’ to a special proceeding,” etc. Under this provision we are required to construe the term “final judgment” appearing in section 1346, as meaning a final judgment in an action and consequently it could not have reference to a judgment in a special proceeding. Appeals from special proceedings are provided for by sections 1356 and 1357 of the Code.

Upon the trial the plaintiff was sworn as a witness in her own behalf, and was asked the following questions: “From the date of your marriage to 16th November, 1874, who provided the necessaries for the house and the support of the family ?” The question was objected to as incompetent under section 829 of the Code. The objection was overruled and exception taken, and the .witness answered: “We both did it; he got some things and I got the rest.” It was because of this ruling that the special term granted the motion for a new trial.

There was no motion made to strike out the answer. The chief question in controversy was whether or not the deceased had agreed to pay the plaintiff three hundred dollars per year to support the family. Her right to recover depended upon the estabhshing of this agreement. It was also necessary for her to show performance on her part. But the question did not necessarily call for any personal transaction or communication with the deceased. It already appeared that Mr. Brown had furnished the provisions and supported the family for the space of about nineteen months, and if the answer had been that Mr. Brown furnished the provisions, the question certainly would not have been objectionable under the section of the Code referred to; or had she testified that she went to the store and purchased all of the necessaries for the house it would not have been a personal transaction with the deceased, but a separate independent act which she would have the right to testify to. Lewis v. Merritt, 98 N. Y., 206.

The answer includes the acts of both herself and the deceased, but does not necessarily indicate that they acted together, or that the transactions were personal, except in so far as it may be an admission on her part that the deceased furnished to her some of the provisions, and this the defendant could not take advantage of on appeal, even though the question was, under the provision of the Code, incompetent, for the reason that the answer was in his interest and he suffered no prejudice therefrom. We are consequently inclined to doubt the correctness of the conclusion reached by the special term, and are of the opinion that a new trial ought not to have been granted upon this ground. •

An examination of the case upon the merits discloses ample evidence to sustain the finding of the referee. The fact that the agreement was made to pay her three hundred dollars per year was conceded by the deceased down to within a few days of the time that they separated. There does not appear to be any substantial dispute as to the amount that he paid per year; so that upon the merits no reasons appear for interfering with the report of the referee.

It is contended on the part of the respondent that the plaintiff’s claim, or some portion thereof, w;as barred by the statute of limitations; but upon the authority of Gilbert v. Comstock (93 N. Y., 484), we must hold that the annual payments relieved the claim from the operation of the statute.

The order of the special term should be reversed and motion to confirm the referee’s report and for judgment granted; that the plaintiff recover the referee’s fees and disbursements paid by her, together with the costs of this appeal, and that the same be paid out of the estate of the deceased.

Barker and Bradley, JJ., concur.  