Appellant has presented to the executor a claim containing many items for labor performed and moneys furnished either to or for the benefit of the decedent during his lifetime. The account starts in June, 1912, and continues to decedent’s death in March, 1923. Credit is given for four cash payments amounting to twenty-five dollars, and also for claimant’s board during the entire period. The surrogate properly ignored the claimed credits and the assertion of a mutual account, and also properly ehminated many of the items from that portion of the claim which he considered upon the merits. However, bis application of the Statute of Limitations requires discussion.
Decedent died March 13, 1923, his will was probated March 5, 1924. The claim was presented September 18, 1924, and claimant petitioned in August, 1928, for a compulsory settlement of the accounts of the executor. The executor rejected the claim on February 28, 1929. The surrogate has applied the six-year Statute of Limitations. He has deducted eighteen months (Civ. Prac. Act, § 21) and has decided that four years, five months and fifteen *244days of the statutory time expired between decedent’s death and the rejection of the claim.
The matter was tried and determined upon the judicial settlement of the executor’s accounts. (Surr. Ct. Act, § 211.) This was a special proceeding. (Paddock v. Kirkham, 102 N. . 597.) The commencement of “ a special proceeding or any proceeding therein ” stays the running of the Statute of Limitations the same as the issuance or service of a summons. (Civ. Prac. Act, § 10.) This proceeding was commenced by filing the petition for compulsory accounting (Surr. Ct. Act, § 260) and not by the rejection of the claim by the executor. This petition and the proceedings set in motion thereby required a court of competent jurisdiction to judge between the two litigants and to make a decision and decree which could be enforced in the same manner as the judgment of a court of general jurisdiction. An action is commenced by the delivery of the summons to the sheriff for service, if such service follows within, sixty days (Civ. Prac. Act, § 17) and not by the filing of the answer. It is not within the spirit of the Statute of Limitations to permit one who pleads it to create further defense by dilatory acts, even though the creditor is diligent.
A strong argument can be made that the service of the claim on the representative of the estate is comparable with the service of a summons, and is the beginning of a proceeding in which ultimately the rights of the parties will be determined, but the authorities seem to be against this contention. (Reynolds v. Collins, 3 Hill, 36; Schutz v. Morette, 146 N. Y. 137, 144; Matter of Rogers, 153 id. 316, 322.) However, the jurisdiction of the Surrogate’s Court in respect of contested claims has been so radically changed and enlarged since these decisions as to weaken their logic. Then section 2722, of the Code of Civil Procedure, provided in. effect that the surrogate could determine whether a claim had been presented to and acknowledged by the representative of the estate, and if so, direct its payment, but if an answer was interposed by the representative challenging the justice of the claim, the surrogate was ousted of jurisdiction. Now, if the claim be rejected by the representative, claimant is permitted, during three months following the rejection, to seek his remedy in a law action, but failing in this, it “ shall be tried and determined upon the judicial settlement.” (Surr. Ct. Act, § 211.) For nearly four and a half jmars this claim was held by the executor without rejection. No explanation is given for such unusual conduct. The representative of an estate may not, by his conduct, lull a creditor into a sense of security until his remedy is barred by the Statute of Limitations. (Matter of Miles, 170 N. Y. 75.) Under certain circumstances, *245inaction by the representative is construed as tantamount to an allowance of the claim. (Lambert v. Craft, 98 N. Y. 342.) It should be determined whether the executor is estopped from pleading the Statute of Limitations because bis delay is unjustified and prejudicial to the rights of the claimant. When a claim has been approved by the representative and later, on final accounting, rejected on the objection of a party interested, the time between the approval and the final rejection is excluded. (Surr. Ct. Act, § 210.) If it should be determined on the rehearing of this matter that the delay was unexcused and prejudicial and equitably amounted to an approval of the claim, the above statutory rule should be applied through the doctrine of estoppel.
The record does not disclose whether real property was sold as permitted by section 236 of the Surrogate’s Court Act to provide funds necessary to pay the debts. If this was so, the time between the presentation of the claim and the objection is not a part of the time limited for the commencement of an action. (Surr. Ct. Act, § 237.)
The decree should be reversed on the law, with costs to the appellant to abide the event, and the matter remitted to the Surrogate’s Court for a rehearing and decision in accordance with this opinion.
Decree reversed on the law and facts and the claim remitted to the Surrogate’s Court, with costs to the appellant payable out of the estate.