In re Boyle's Estate

• Decision Date: 04 May 1926
• Citation: 151 N.E. 821,242 N.Y. 342
• Parties: In re BOYLE'S ESTATE. In re KINNEY.
• Court: New York Court of Appeals Court of Appeals

242 N.Y. 342

151 N.E. 821

In re BOYLE'S ESTATE. In re KINNEY.

Court of Appeals of New York.

May 4, 1926.

In the matter of the petition of Thomas W. Kinney, as administrator de bonis non of the estate of John Boyle, deceased, for settlement of his account. From an order of the Appellate Division (216 App. Div. 726, 214 N. Y. S. 808), unanimously affirming an order of the Surrogate's Court, granting, as a matter of right, a jury trial to determine the validity of a claim of Mary Treacy against estate of the decedent, Thomas W. Kinney appeals by permission, and the Appellate Division certifies a question.

Reversed.

Appeal from Supreme Court, Appellate Division, Second department.

John J. Fitzgerald and Avery F. Cushman, both of New York City, for appellant.

Harry H. Schutte, of Brooklyn, for respondent.

McLAUGHLIN, J.

On February 15, 1917, one Mary Treacy presented a claim to the administrator de bonis of the estate of John Boyle, deceased, for the sum of $3,022 for board, lodging, care, and medical services alleged to have been furnished by her to the decedent. On February 20, 1917, the claim was by him rejected, coupled with a statement in writing that the validity of such claim would be submitted for trial and determination on the judicial settlement of his account. Nothing further was done until November 5, 1925, when the administrator de bonis non filed in the Surrogate's Court his account and asked for a judicial settlement of the same. A citation was issued, and among other persons cited was the claimant. Upon the return of the citation, she appeared by attorney, objected to the account, and asked that the validity of her claim be submitted to a jury for trial, and that, for that purpose, certain questions be settled and a jury trial ordered. The surrogate ordered that a jury trial be granted and that nine specific questions of fact be submitted to it. The administrator de bonis not then moved for a reargument of the motion. This motion was granted, but the surrogate adhered to his former decision and again ordered a jury trial ‘as of right’ upon the issues involved in respect to the rejected claim.

An appeal was taken from this order to the Appellate Division, Second Department, where the same was unanimously affirmed. The Appellate Division, however, upon motion of the administrator de bonis non, granted leave to appeal to this court, and certified the following question:

‘Is the respondent, Mary Treacy, a claimant against the estate herein, entitled as a matter of right to a trial by a jury of her claim?’

I am of the opinion that the Appellate Division was wrong in holding that the claimant ‘as of right’ was entitled to a jury trial. This seems to me to necessarily follow when the sections of the Surrogate's Court Act (Laws 1920, c. 928) bearing upon the subject are considered.

Section 98 provides:

‘In any proceeding in which any controverted question of fact arises, of which any party has constitutional right of trial by jury, * * * the surrogate must make an order directing the trial by jury of such controverted question of fact, if any party appearing in such proceeding seasonably demands the same. * * *’

Section 211 provides:

‘If the executor or administrator doubts the justice or validity of any claim presented to him, he shall serve a notice in writing upon the claimant that he rejects said claim, or some part of it, which he specifies. Unless the claimant shall commence an action for the recovery thereof against the executor or administrator within three months after the rejection, or, if no part of the debt is then due, within two months after a part thereof becomes due, said claimant, and all the persons claiming under him, are forever barred from maintaining such action, and in such case said claim shall be tried and determined upon the judicial settlement.’

It is true that the Appellate Divisions of the Second and Fourth Departments have held that claimants under facts quite similar to those presented in the present case were entitled as a matter of right to a jury trial. Matter of Beer, 188 App. Div. 894,175 N. Y. S. 894;Matter of Stein, 200 App. Div. 726, 193 N. Y. S. 298.

The Appellate Division of the First Department, however, has taken a different view. Matter of Beare's Estate, 122 Misc. Rep. 519, 203 N. Y. S. 483, affirmed 214 App. Div. 723, 209 N. Y. S. 793;Matter of...