Present — Foster, Mullin and Morgan. JJ.
*447By the Court
Mullín, J.I will not take time to consider the question, whether on the proof in this case, there was a mutual, open and running account between the plaintiff and defendant’s intestate, but shall assume, for the purposes of this appeal, that it was such an account.
To present the question in a way to enable the court to decide it satisfactorily, there should be a finding of sundry facts not found by the referees nor discussed by the counsel. It is, therefore, safer to leave that question to be considered on a future trial, should^ a new trial be ordered by the court.
The defence mainly relied upon by the defendant is the statute of limitations. The view that the referees took of the presentation of the account by the plaintiff, and of the failure of the defendant to dispute or reject the same, precluded all inquiry by them as to whether or not the statute barred all, or any portion of the plaintiff’s claim.
The view of the referees was, that the account became a stated account, and the defendant could not avail himself of the statute of limitations, as a defence to it.
If the referees are wrong in their view of the legal question, the judgment must be reversed, and a new trial ordered.
In references under the Revised Statute, to hear and determine claims against the estates of deceased persons, an executor or administrator is entitled to any defence which was available to his testator or intestate in his lifetime, including the statute of limitations. There is nothing in the form or nature of the proceedings which precludes such a defence. (Tracy v. Suydam, 30 Barb., 110.)
The omission of a debtor to dispute the accuracy of an account presented to him within a reasonable time, has no other effect than to enable the creditor to recover the amount of the account without proof of the correctness of any of its items. It is not as was said by Selden, J., in Lockwood v. Thorne (18 N. Y., 285), an estoppel. The account is still open to impeachment for mistakes and errors. * * The party seeking to impeach it is bound to show, affirmatively the mistake or error alleged. (1 Wait’s Practice, 719.)
*448Giving to the account stated all the force that can be properly claimed for it, it does not preclude the debtor from insisting upon the statute of limitations as a defence. He cannot dispute the items; but if they had ceased to be legal claims against him, his mere silence cannot infuse life and validity into them. To give it such an effect, would be to give it the force of an estoppel in pais which it cannot properly have.
If mere silence is to operate as a waiver of the defence, how is a party to whom an account is rendered correct in its terms, but barred by the statute of limitations, to protect himself?
He cannot deny the correctness of the accounts, and I am not aware of any case that holds him bound to notify the creditor of his intention to insist on the statute. If - the debt is not paid the creditors must sue, and then the debtor must avail himself of the statute.
But if it should be held ■ that when an account becomes stated, the debtor cannot insist upon the statute of limitations as a defence, the principle ought not to be extended to an account presented to and not disputed or rejected by a,n executor or administrator.
This class of persons may pay a debt that is outlawed, but the payment will not be allowed to him in the settlement of his accounts with the surrogate.
Nor can a personal representative revive by an express verbal promise a debt barred by the statute. (Bloodgood v. Bruen, 8 N. Y., 362.)
If this cannot be done directly it surely cannot be done indirectly.
The law implies a promise by the debtor to pay an account when it becomes stated. Will the law give to an implied promise a greater force than it permits to be given to an express promise ? Certainly not.
Since the Code, a debt that is barred cannot be revived except by a promise in writing or by payments. It would be an evasion of the statute to permit a stated account to revive *449a claim that is barred. The whole object of the statute of limitations would be defeated by the adoption of such a rule.
Section 91 of the Code provides that actions upon contract, obligation or liability, express or implied, must be brought within six years after the cause of action shall have accrued. (Same, § 74.)
The cause of action accrued as to all that part of the indebtedness contracted prior to the death of Chapin, on the 7th July, 1856. The death of Chapin extended the time of commencing the action eighteen months, giving the plaintiff seven years and six months within which to bring his suit.
The reference stands in the place of an action, and the entry of the order to refer must be deemed to be the commencement of the action for the purpose of determining whether an action had been brought within the time limited in the statute.
It was held in Peck v. Randall (1 J. R., 165), that the presentation of a claim to the trustees of an absent debtor prevented the running of the statute of limitations because it stood in place of a suit and the trustees could not be sued. The personal representative can be sued, and the reason of the rule ceasing, the rule itself ceases.
The precise point was decided in Reynolds v. Collins (3 Hill, 37); Bronson, J., holding that presentation of a claim to executors did not prevent the running of the statute.
The order to refer was entered on the 11th May, 1866. Nearly ten years had elapsed from the date of the last item before suit was brought. Unless, therefore, there is something in the case to take it out of the usual rule, the whole account which accrued before the death is barred.
It is insisted that the charge for eight days services in making inventory and settling accounts, being within six years from the date of the last preceding item, prevents any part of the account from being barred by the statute.
The account having become stated this item is prima fade correct, and hence prima facie the whole account is valid. *450But it was competent for the defendant to surcharge and falsify, and thus exclude any article not legally chargeable.
In references under the statute to determine the validity of claims against the estates of deceased persons there are no pleadings, hence the parties only show by their proofs what the grounds of recovery or of defence may be.
The personal representative has an unlimited right to establish by evidence any defence he may have to the claim. He may, therefore, surcharge and falsify any part of an account that has become stated in the lifetime of the testator or intestate, or since his appointment as administrator or executor.
The defendant is at liberty, therefore, to assail the items of the 26th October.
It seems to me, the items under consideration cannot be recovered. There is no evidence that plaintiff was requested by either the defendant or the intestate to perform the service for which the charge is made. The plaintiff himself does not swear to any request.
The service was for the benefit of the firm of House & 'Chopin, and, presumptively, it should pay for it.
Rejecting this item, then every charge in the account, accruing in the intestate’s lifetime, is barred, unless that result is prevented by the charges for wood, flour, &c., delivered after his death.
The service performed for, or property sold to an executor or administrator, as such, cannot be deemed or treated as a continuation of a running account with the testator or .intestate, in his lifetime.
At the death, the account is closed ; all future charges are against a different party, who is himself personally liable to the creditor on all contracts made by him in behalf of the estate.
For these reasons, I think the whole of the account that had accrued against Chapin in his lifetime is barred.
There must, therefore, be a new trial.
Judgment reversed and new trial ordered ; costs to abide ■event.