In re Schorer's Estate

• Decision Date: 31 December 1936
• Citation: 272 N.Y. 247,5 N.E.2d 806
• Parties: In re SCHORER'S ESTATE.
• Court: New York Court of Appeals Court of Appeals

272 N.Y. 247

5 N.E.2d 806

In re SCHORER'S ESTATE.

Court of Appeals of New York.

Dec. 31, 1936.

Proceeding by George E. Pfahler for judicial settlement of the accounts of Maggie L. Schorer, as executrix of the estate of John B. Schorer, deceased. From an order of the Appellate Division (248 App.Div. 666, 289 N.Y.S. 911), affirming an order of the Surrogate's Court (154 Misc. 198, 277 N.Y.S. 677), directing trial and determination of petitioner's claim, filed with and rejected by the executrix, on final accounting, the executrix appeals, and the Appellate Division certified to the Court of Appeals the question whether it was error as matter of law to deny executrix' motion to dismiss the petition.

Order affirmed, and question cetified answered in the negative. Appeal from Supreme Court, Appellate Division, Fourth department.

Paul R. Taylor and Truesdale Clarke, both of Rochester, for appellant.

Henry R. Glynn, of Rochester, for respondent.

HUBBS, Judge.

John B. Schorer died January 25, 1927. Letters testamentary under his will were issued to the appellant on February 7, 1927. On or about June 20th, 1927, the claimant, George E. Pfahler, filed a verified claim for medical services amounting to $2,500. The claim was filed by respondent's attorneys together with a notice of retainer. The attorney who served those papers testified to a conversation with the attorney for the appellant in which the attorney for the appellant said: ‘Let it go along, and we'll see what we can do; and when we come to render an accounting, we'll see what we can do with it; and if we can't do anything, we will go into court and thrash it out.’

Thereafter, and until June 28, 1934, when respondent instituted this proceeding for a compulsory judicial settlement of the accounts of the appellant as executrix, no accounting was had and no action was taken with respect to the claim.

In the accounting proceeding the appellant answered and pleaded the six-year statute of limitations as a bar. The surrogate decided that the six-year statute of limitations did not apply and ordered a judicial settlement and a trial for determination of the claim. The Appellate Division affirmed, one justice dissenting.

The question on this appeal is whether the six-year statute of limitations, section 48 of the Civil Practice Act, applicable to contract actions, applied to the rejected claim against the estate then in process of liquidation in Surrogate's Court. Section 211 of the Surrogate's Court Act reads as follows: ‘§ 211. Rejected claim to be tried on judicial settlement; limitation of action by creditor. 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.’

The section prescribes a limitation on the time within which to bring an action in another court on a rejected claim. It is a short statute of limitations totally different from the six-year statute, section 48 of the Civil Practice Act. If an action be not commenced within the time limited by section 211, it is specifically provided therein that ‘in such case said claim shall be tried and determined upon the judicial settlement.’

The only decisions involving a construction of section 211 to which we have been referred are Matter of Whitcher, 230 App.Div. 239, 243 N.Y.S. 720, and Matter of Deitz's Estate, 134 Misc. 393, 235 N.Y.S. 756. In Matter of Whitcher the Appellate Division, Third Department, decided that the filing of the claim was the commencement of a special proceeding that tolled the statute of limitations; also that the filing of a petition by the claimant to compel an accounting was a proceeding in the special proceeding, and, as the proceeding was commenced before the remedy had been barred by the statute of limitations, it did not have the effect of barring claimant's right to compel an accounting after the expiration of the statutory period. In Matter of Deitz's Estate a contrary opinion was expressed. We have reached...