1. Nature of the proceeding.]- The practice as to presentation of claim has been already stated.40 The reference is under special statutory regulation, and the statute is to be strictly pursued; upon the entry of the order of reference the proceeding becomes a Supreme Court action.11 42 2. The practice.]- Under the present New York statute the court and the referee respectively have in general the same power as in actions, including the power to permit amendments of the claim.43 Whatever order is taken in the proceedings should be a court order, or an order of the referee, not a judge's order; and if a court subpoena is taken out, it is well to take also the referee's signature to it. 3. Defenses.]—Any existing defense is available to the personal representative, including the statute of limitations; it is not 44 39 A claim against the executor as an individual cannot be referred under this statute. Van Slooten v. Dodge, 145 N. Y. 327 (claimant's property wrong. fully withheld); Shorter v. Mackey, 13 App. Div. 20, 43 N. Y. Supp. 112; Genet v. Willcock, 93 App. Div. 588, 87 N. Y. Supp. 938 (funeral expenses). A judgment recovered against the decedent cannot be referred. Browne, 35 Misc. 362, 71 N. Y. Supp. 1034; Matter of Wait, 39 Misc. 74, 78 N. Y. Supp. 869. Compare Matter of Clarke, 57 App. Div. 430, 68 N. Y. Supp. 243. Matter of 40 See p. 516 of this volume. The statute does not require formal presentation of claim before consent to refer. Merino v. Munoz, 99 App. Div. 201, 90 N. Y. Supp. 985. 41 Code Civ. Pro., § 2718, as amended 1893. Honigbaum v. Jackson, 97 App. Div. 527, 90 N. Y. Supp. 182; Adams v. Olin, 78 Hun, 309, 29 N. Y. Supp. 131. 42 N. Y. Code Civ. Pro., § 2718; Hustis v. Aldridge, 144 N. Y. 508. 43 Lee v. Lee, 85 Hun, 588, 33 N. Y. Supp. 115 (court may allow amendment). Lounsbury v. Sherwood, 53 App. Div. 318, 65 N. Y. Supp. 676 (referee may properly allow amendment increasing claim). The decisions prior to the 1893 amendment are to be distinguished. 44 Simons v. Steele, 82 App. Div. 202, 81 N. Y. Supp. 737; aff'd, 177 N. Y. even necessary that the specific defense be urged during the hearings. 45 4. Costs and disbursements.]- The personal representative, if successful, recovers costs of course. The claimant, if successful, may only be allowed costs if his claim has been presented in time, and has been unreasonably resisted or neglected. In order to entitle the claimant to tax costs, the referee must certify to the existence of these facts.48 The claimant, if successful, recovers his disbursements, of course, and without a certificate from the referee.49 FORM No. 357. Agreement to refer claim against executors and administrators. Memorandum of agreement made this day of 19 by and between A. B., as executor of the last will and testament of [or, as administrator of the estate of] M. N., late of deceased, and Y. Z., of witnesseth: Whereas said Y. Z. has presented a claim to said A. B. as such executor [or, administrator] which claim is stated as follows: [setting forth the facts constituting the claim as in a complaint -or, a copy of which claim is hereto annexed.50] And whereas said executor [or, administrator] doubts the justice of such claim.51 45 Id. The representative will not be required to disclose his defense by serving an answer or bill of particulars. Rutherford v. Soop, 85 Hun, 119, 32 N. Y. Supp. 636. 46 Winner. Hills, 91 Hun, 89, 36 N. Y. Supp. 683; Adams v. Olin, 78 Hun, 309, 29 N. Y. Supp. 131. Or if the claimant recovers less than $50. Lamphere v. Lamphere, 54 App. Div. 17, 66 N. Y. Supp. 270. 47 Henning v. Miller, 83 Hun, 403, 31 N. Y. Supp. 878. 48 Matter of Raab, 47 App. Div. 33, 62 N. Y. Supp. 403. Such certificate may be separate from his report, and made subsequently to its filing. Brainerd v. De Graef, 29 Misc. 560, 61 N. Y. Supp. 953. The Special Term has no power to review the referee's award of costs. Jenkinson v. Harris, 27 Misc. 714, 59 N. Y. Supp. 548. 49 Osborne v. Parker, 66 App. Div. 279, 72 N. Y. Supp. 894; Lounsbury r. Sherwood, 53 App. Div. 318, 65 N. Y. Supp. 676; Niles v. Crocker, 88 Hun, 312, 34 N. Y. Supp. 761. 50 The agreement to refer serves the purpose upon the reference, of the complaint in an action, and must state the cause of action sufficiently for this purpose. Woodin . Bagley, 13 Wend. 452; Townsend r. The N. Y. Life Ins. Co.. 4 Civ. Pro. 398; mem. S. C., 94 N. Y. 656. 51 See note 45, supra. Although he can avail himself of a set-off or counter-claim to the extent necessary to extinguish the demand of the claimant, he cannot on such a reference obtain an affirmative judgment on his counter-claim. It is hereby AGREED between said A. B. as such executor [or, administrator] and said Y. Z. that the matter in controversy be referred to [names and residences of one or three referees], as referees [or, as sole referee,52— or, to a referee to be appointed by the surrogate3] to hear and determine the same. [May add stipulations, if desired, as to place of hearing, the taking of testimony, etc.] [Date.] 54 [Acknowledgment.] [Signatures.] FORM No. 358. Approval of the surrogate, to be indorsed.55 hereby approves of the person[s] within named as referee [s] under the within agreement. The surrogate of the county of - - or, Upon reading and filing the annexed agreement between A. B., as executor of the last will [or, administrator of the estateadministrator with the will annexed] of M. N., late of 52 One or more disinterested persons may be named. Code Civ. Pro., § 2718. A sole referee must be an attorney. N. Y. Gen. Rules No. 79. For other qualifications, see REFER ENCE. 53 Held, in Tilney v. Clendenning, 1 Dem, 312, that the surrogate cannot select the referee where the parties have not agreed on one, unless they have agreed to accept such as he may select. 54 Depositions may be taken as in an ordinary action. Paddock v. Kirkham, 102 N. Y. 597. The rules of evidence and the burden of proof are the same as in an action. Skidmore v. Post, 32 Hun, 54. 55 While the surrogate of the county of decedent's late residence should approve the agreement, an order made upon the approval of another surrogate is not a nullity, and de any objection upon such ground is waived by proceeding to a trial before the referee. Montgomery v. Burgess, 92 Hun, 289, 36 N. Y. Supp. 711. 56 This order should be entered in the office of the clerk of the Supreme Court in the county in which the parties or either of them reside. N. Y. Code Civ. Pro., § 2718. It is in effect a court order, though, under the statute, entered by the clerk. If the agreement to refer is not filed and an order of reference entered, the court, does not become possessed of the cause. Comstock v. Olmstead, 6 How. Pr. 77. And as to the effect of failure to fully comply with provisions of the statute, see Burnett v. Gould, 27 Hun, 366. The order and subsequent proceedings should be entitled as in an action. ceased, and Y. Z., of dated the day of 19, and the approval of Hon. J. K., surrogate of county of , of the referee [or, referees] therein named; now, on motion of O. P., attorney for said A. B., as such [executor] [or, Y. Z.], ORDERED, that the matter in controversy set forth in said agreement [or, in the statement of the claim thereto annexed] be and the same is hereby referred to [names and residences of referees], to hear and determine the same. [Add clauses stipulated for, as to place of hearing, notice, evidence, etc., if any.] [Date.] [Signature], Clerk of the county of FORM No. 360. Report of referee on claim against decedent. [Title of court and cause.] To the Supreme Court. The undersigned, appointed by this court as sole referee to hear and determine the claim of A. B. against the estate of M. N., deceased, by order dated and entered on the day of , having first taken the oath of office hereto annexed, and having heard and considered the allegations and proofs of the parties, and having heard J. O. H., Esq., for the claimant, and W. W. G., Esq., for the executors [or, administrators], reports to the court as follows: [insert findings of fact and conclusions of law, with direction as to judgment, and as to costs, as in an action.] [Date.] FORM No. 361. [Signature], Referee. Certificate of referee on award of costs to claimant.57 [Title of court and cause.] This is to certify that the plaintiff's demand herein was duly presented to the defendant [executor] within the time limited by a notice published as prescribed by law requiring creditors to present their claims, and that the payment thereof was unreasonably resisted [and neglected.] 57 See paragraph 4, p. 618, supra. FORM No. 362. Judgment on reference of claim against decedent.58 [Title of court and cause.] The claim of the above-named A. B. against the estate of M. N., deceased, having been duly presented to the above-named Y. Z., her executor, and the same having been disputed and rejected by him, and by consent of the parties, and with the approval of the surrogate, the same having been duly referred to A. A. R., Esq., as sole referee, to hear and determine the matters in controversy, pursuant to the statute, and said referee having duly made and filed his report thereon directing judgment as hereinafter provided, and having also certified that said claimant was entitled to costs, and the costs of said claimant having been duly taxed at the sum of dollars, including disbursements, now, on motion of F., H. & S., attorneys for said claimant, IT IS ADJUDGED, that the said A. B. do recover of the said Y. Z., as executor of the last will and testament of the said M. N., deceased, the sum of dollars so found due by the referee, dollars interest thereon from dollars costs, as appears by his report, and dollars, to be levied and collected of the goods, chattels and credits of said M. N., deceased, according to law. [Remedy to review is as in an action.]59 58 No application to confirm the report is necessary or proper. Jenkinson v. Harris, 27 Misc. Rep. 714, 59 N. Y. Supp. 548. 59 N. Y. Code Civ. Pro., § 2718, as amended 1893. |