This is an application to allow the costs and. disbursements to be taxed and inserted in the judgment. It is resisted upon the ground that the claim upon which the plaintiff has recovered is not the claim which was presented to the executors, which they disputed, and which Scudder and Carter, the • plaintiff’s attorneys, offered to refer, and that, therefore, the plaintiff' is not entitled to costs.
The plaintiff recovered $1,250 for the breach of a special contract on the part of the executors, entered into in writing between the plaintiff and the testator, whereby the testator agreed that the plaintiff should appear on his, the testator’s, behalf before the commissioners of estimates and assessments and the Supreme Court in the matter of the widening of Eeade street, for the purpose of increasing the amount of the award made by the commissioners in favor of the testator, and by
After this contract was entered into, and during the lifetime of the testator, the plaintiff undertook to obtain an increase of the award, and appeared upon the testator’s behalf before the commissioners of estimates and assessments and before the Supreme Court, rendering various services, which were continued after the testator’s death and after the defendants had entered upon their duties as executors, the counsel of the executors, the late Mr. Edwards, appearing as their representative, with the plaintiff, upon the hearing of the matter before the commissioners.
I conclude, from the plaintiff’s letter of October 30, 1858, and the defendant Binsse’s reply to it, that the defendants were unwilling to recognize the plaintiff’s right to appear any further on their behalf or on that of the estate, under the contract which he had made with the testator, upon the technical grounds that new commissioners had been appointed, and that, in the language of the defendant Binsse’s letter, the plaintiff’s contract with the testator was based upon the sole claim of obtaining an increased award from the old set of commissioners, and the intervening circumstances ■ (the appointment of new ones), having destroyed that chance, he had no right under his contract to appear any further in the matter, in behalf of the estate, the sole management of which was to be and, I presume, was entrusted thereafter to Mr. Edwards, a distinction which the referee did not appreciate, as he awarded $1,250 damages to the plaintiff for the breach of the contract of the testator on the part of the executors.
The plaintiff’s letter of October 30, 1858, to the defendant, Binsse, was an offer to surrender the contract signed by the testator, and abandon all right to contingent compensation under it for $1,000, a less sum than he has recovered, and that for his services after the new commission was appointed he would not name any sum, but submit it to the arbitration of Mr. O’Conor or Mr. Cutting, two eminent lawyers, all of which the defendant, Binsse, on behalf of himself and his co-executors, declined,
Matters appear to have remained in this state until the 12th of October, 1859, when Scudder and Carter addressed the defendant, Binsse, a letter informing him that they were employed by the plaintiff and E. G. Genet as their attorneys to present their claim against the La Farge estate to the executors, and that they enclosed therewith a statement of it; that from what had, occwi'red in respect to the éla/im, they supposed it would not be recognized by the executors, and that, to test its validity, they offered, on behalf of their clients, in case the executors should doubt the justice of the claim, to refer the matter in controversy to three disinterested persons to be approved by the Surrogate. On the 18th of October following, six days afterwards, Scudder and Carter received a note from Mr. Edwards to the effect that he was instructed by the executors to say that they did not recognize G. C. & E. G. Genet’s claim as sent in by their attorneys, and that the executors preferred to have it tested by a jury. The offer to refer in the mode provided by the statute having been declined, the plaintiff commenced this suit on the 12th of Sbvember following.
In the letter of Scudder and Carter, a statement was enclosed in the form of a bill of particulars of the amount due from the executors, &c., to G. C. & E. G. Genet, in which the specific services rendered by them in the matter of the award were set out in the shape of items, with their estimate of the value of each specific service, amounting to the sum of $1,050, for their services before the old commissioners; $2,500 for their services before the new, and $250 for services in the matter of the Central Park, for moneys awarded to unknown owners, and amounting in the whole to the sum of $3,800, which statement and claim was verified by an affidavit of the plaintiff in the form prescribed by the statute.
It is conceded that the letters of the plaintiff of October 30, 1858, and of Scudder and Carter, of October 12,1859, were presented within the time required by the statute, if they
In Wallace v. Markham, Adm., &c. (1 Denio, 671), the plaintiff recovered $579.20 upon a quantum meruit, for labor and services performed for the intestate in his lifetime and the claim presented to the administrators, was a note or agreement given by the intestate to the plaintiff shortly before his death for $1,000, to be paid upon an uncertain contingency,— when his land in Michigan should be sold,—the plaintiff, when the note was given, being a minor, and which note she dis-affirmed after she became of age, and brought her action to recover upon a quantum meruit for her services. It was held that this was not the claim upon which the plaintiff recovered— that to lay a foundation for costs in actions against administrators and executors, the claim presented for payment, and which is offered to be referred, must be substantially the claim upon which the plaintiff subsequently recovers, and upon the authority of this case, it is insisted that the claim presented by Scudder and Carter was not substantially the one upon which the plaintiff recovered.
The letter of the plaintiff to Binsse, of October 30, 1858, evidently refers to the claim, which was enclosed in the form of a statement in the letter of Scudder and Carter, and attested by the plaintiff’s affidavit, and both letters, in my opinion, may be taken together in determining whether the claim presented, and the one recovered on, were substantially the same. If I am right in this conclusion, then the letter of the plaintiff fully apprised the defendant, Binsse, that the plaintiff insisted that he had a right to a contingent compensation under the contract for his services up to the time, of the appointment of the new commission, as well as a claim for his services before the new commission, and the letter of Binsse, in reply, shows
Eleven months after this letter of Binsse was written, the letter of Scudder and Carter was sent to the executor, enclosing the statement before referred to. This statement differs in some respects from the claim as recovered. 1. The obligation is set forth as an indebtedness to the plaintiff’s firm, G. C. & E. G. Genet;—the attesting affidavit of the plaintiff being that it was justly due to the firm, whereas the contract sued upon was with the plaintiff only, and the action upon it was brought by him alone; 2. It was much greater in amount than the claim recovered; and 3. It contained a charge, §250, for services not rendered under the special contract.
In determining whether these points of difference in the claim presented are material or not, it will be necessary to look into the statute, and see exactly what it imposes upon the claimant, before he can hold either the estate or the executors answerable for costs, if he brings an action against them and recovers. 1. The demand must be presented within the time prescribed by the statute, which in this case was done. 2. If the executor requires it, satisfactory vouchers in support of the claim must be produced, and also the affidavit of the claimant
Nor is it material that the amount was greater than the .•amount recovered. Damages were recovered for the breach of the contract, and what those damages were could be settled only by agreement between the parties, or by the result of a trial in an action. It was, therefore, very proper to set forth in this statement each specific service which had been rendered, with the estimated value of each, as it was giving the executor the items upon which the estimate of damages was founded ; and that the estimate was too high, being greater than was subsequently recovered, was, in a matter so uncertain, immaterial, if the executors were in all other respects fully apprised of the nature of the claim. The same remark may be applied
All the other items, which were seven in number, related to services rendered either in the Supreme Court, or before the commissioners in the matter of increasing the award for the opening of Reade street, and the services rendered before the new board of commissioners, were distinguished from those before the old, and their value separately estimated. The question therefore recurs, was this substantially the same claim as the one upon which the plaintiff recovered ? And before deciding that question, it may be as well to state that a presentation of the claim to one of the executors is sufficient, and if after a reasonable length of time has elapsed to enable him to confer with the others, no action is taken, no doubt of the justice of the claim expressed or given to the claimant, and no desire intimated to him to have it referred in the mode which the statute has provided, then the payment of it by the executors within the meaning of the statute is “ unreasonably resisted or neglected,” and the claimant may bring his action, and if he recovers, should be allowed to recover the costs which he has ineurrred (Knapp v. Curtis, 6 Hill, 386; Cole v. Jessup, 1 Barb., 394).
In reviewing the sufficiency of the presentation of a demand to executors, in Gansevoort v. Nelson (6 Hill, 392), stress was laid upon the fact that the executors evidently knew everything in relation to the plaintiff’s demand, and very properly ; for the obvious design of the statute was, that neither the estate, nor the executor, should be chargeable with costs, unless where, in view of their representative character, it was just to impose them. And it is, therefore, made incumbent upon the claimant, within six months after the representatives
In my opinion, the defendant, Binsse, knew perfectly well
It has been held in mapj cases, that if a considerable part of the claim presented has not been recovered, the claim has not beerr unreasonably resisted by the executors, a consideration which does not arise in this case, as the executors refused to pass upon the claim when formally presented, and
My conclusions are : That the claim recovered was. rejected by the executors before Scudder & Carter made a formal presentation of it in their letter, and that upon the authority of the cases cited, the executors had, in effect, what the statute meant to secure to them. That the claim recovered was substantially embraced in the letter of Scudder & Carter. That neither the executors, nor their attorney were misled by the form in which it was presented, having previously understood all about it. That they made no discrimination or objection, upon the ground that it was in the form of an indebtedness to the firm and not to the plaintiff. That if their objection to it was upon that ground, or they objected only to the item of $250, fair dealing to the creditor required that they should have said so; that the defect, in the one case, might have been rectified by correcting the mistake, and, in the latter, that he might know that, all they objected to was the $250. That what they meant to reject, and did reject, was the very claim which was recovered. That they had no intention that that claim should be referred, in the form prescribed by the statute; but meant that the validity of it should be tested by an action. And that the technical objection now raised was an after-thought, to relieve them from costs, after they had contested the claim, and their liability had been established by a recovery.
The motion for costs is therefore granted.