This is an appeal by the administrator from a decree of the Surrogate settling his account pursuant to section 260 of the Surrogate’s Court Act which directed payment of the claim of Anna Kramer, a niece of the decedent, in the sum of $2,000. Appellant requests in the notice of appeal that this court exercise its powers under section 309 of the Surrogate’s Court Act.
The deceased, Jacob Goldberg, a resident of The Bronx, died intestate April 24,1954, leaving him surviving a Avife, from Avhom he was separated, and several children. The assets of the estate, consisting solely of personalty, were located in New York. Letters of administration were issued June 1, 1954, to a son, Alfred Goldberg. On November 25, 1954, the assets of *298the estate were completely distributed. No accounting was ever filed.
From the account, as stated, it appears that in April, 1954, petitioner claimed the entire estate as next of kin, and that a claim was filed also with the Public Administrator that the deceased gave petitioner the entire estate of approximately $40,000. In October, 1954, petitioner made claim upon the administrator for the entire estate, claiming a gift from the decedent. This claim was rejected. A similar claim, made later, was rejected in writing December 21, 1954.
Some 18 months after the death of the decedent, petitioner brought suit in New Jersey against the administrator, claiming that she had rendered certain services in New York to the decedent. In September, 1958, petitioner obtained a judgment in the sum of $2,000 against the administrator.
By a petition sworn to June 23, 1959, Anna Kramer, as a judgment creditor, sought a judicial settlement of the account of Alfred Goldberg as administrator. A supplemental petition, sworn to October 29, 1959, revealed that the judgment had been entered September 25, 1958, in New Jersey. Based on the petition and supplemental petition a hearing was held February 24, 1960, during the course of which rulings were made that the New Jersey judgment was entitled to full faith and credit. However, by a notice in the New Yorh Law Journal of March 3, 1960 (p. 14, col. 6), the matter was restored to the calendar of March 16, 1960 (at which time the hearing was continued) to take proof of the validity of the claim of Anna Kramer. Thereafter the claim was allowed in the sum of $2,000. The majority of the court is affirming the decree.
I dissent and vote to reverse and dismiss the petition. The petition is based upon the claimed status of petitioner as a judgment creditor. The Surrogate, after the restoration of the case to the calendar, evidently concluded that such position was unsupportable. Since the courts of New Jersey had no jurisdiction of the administrator, as administrator, a judgment there obtained could not be recognized as valid in this proceeding. (Helme v. Buckelew, 229 N. Y. 363; cf. Leighton v. Roper, 300 N. Y. 434.) Petitioner thus was not a creditor within the meaning of section 259 (subd. 1, par. a) of the Surrogate’s Court Act, and as such entitled to initiate proceedings for a compulsory accounting. However, that section uses the language: “a creditor or person interested in the estate ”. In view of the facts that the assets of the estate amounted to approximately $40,000, and the decedent left him surviving a widow and three children, petitioner, a niece, could not be “interested” as a *299distributee, under our laws of descent and distribution. The alternative, by which she could qualify, would be as a creditor. This would require the presentation of a written claim to the administrator (cf. Ulster County Sav. Inst. v. Young, 161 N. Y. 23, 33). The only writing, aside from the judgment, alleged to have been presented to the administrator, in which petitioner asserts she was entitled to benefits, was that in which she claimed to be entitled to the entire estate by reason of a gift by the decedent. There is a clear distinction between a pure donor-donee relationship and that of a debtor-creditor.
Since this was a proceeding pursuant to section 260 of the Surrogate’s Court Act, the person seeking the accounting had no status as such. From the record it does not appear that when the case was restored to the calendar, any written claim was filed. The hearing was merely continued and some proof taken of the claimed indebtedness. Petitioner is barred by section 208 of the Surrogate’s Court Act, and without the protection of section 211 of such act. Knowledge that petitioner claimed the entire estate as a gift is not such knowledge of the existence of a claimed indebtedness as to deprive the administrator of the protection of section 208. A claim, debt or demand, in my view, embraces such obligations as could be advertised for and, upon presentation, be rejected or approved. A gift might be analogized to a legacy and thus subject to somewhat different rules. (Cf. Brennan v. Adler, 190 App. Div. 589.)
Moreover, a reading of the testimony is not persuasive that petitioner established a contract or agreement by decedent to pay, or even that such services as might have been rendered were rendered upon agreement, express or implied, of payment. The finding and awarding of $2,000 to petitioner is against the weight of the credible evidence.
For the reasons stated, I dissent, vote to reverse, dismiss the petition and deny the claim.
Brbitel, J. P., Eager and Noonan, JJ., concur in Per Curiam opinion; Stevens, J., dissents in opinion in which Stetter, J., concurs.
Decree affirmed, upon the law and upon the facts, without costs. Appeals from orders entered on September 8, 1959, September 17,1959, October 19,1959, November 20,1959 and March 2, 1960 dismissed, without costs.