Opinion
November, 1914.
Crescens Hubbard, for executrix.
Henry T. Stetson, for Sarah E. Gill.
Collin, Wells Hughes, for Anna M. Begent and Frank A. Begent.
The executrix in this proceeding filed a petition for an accounting. Objections were filed to said account and a referee was appointed to examine the same and to hear and determine the questions arising upon the settlement of said account.
All of the attorneys in the matter asked in open court that the referee hear and determine all claims.
The hearing was brought on before the referee and the following stipulation was entered upon the minutes of said hearing: "It is consented by both parties that the claim of Frank E. Begent be referred to Arthur I. Strang, Esq., referee, for trial in this proceeding, that the same shall be in effect as though an action had been brought directly by Frank E. Begent against the executrix, and that the testimony which has already been taken under this claim be considered as taken under this consent."
Acting upon the stipulation the referee has heard and determined the said claim of Frank E. Begent and the matter is now brought on before me for confirmation of said report.
The attorney for the executrix opposes the confirmation of said report upon the ground that there was not a written consent filed by the parties with the surrogate.
There are two ways in which a claim can be tried in a Surrogate's Court. Under the provisions of section 1822 of the Code of Civil Procedure the surrogate himself may hear and determine a contested claim where a written consent has been filed by the parties with the surrogate. The only other way that a contested claim may be tried and determined is agreeable to the provisions of section 2718 of the Code of Civil Procedure. Under this section, if the executor or administrator doubts the justice of any such claim, he may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons to be approved by the surrogate. On filing such agreement and approval in the office of the clerk of the Supreme Court in the county in which the parties, or either of them, resides, an order shall be entered by the clerk referring the matter in controversy to the person or persons so selected. On the entry of such an order the proceeding shall become an action in the Supreme Court.
It is obvious that an agreement has never been entered into by the parties agreeable to section 1822 asking the surrogate to hear and determine the claim in question. I do think, however, that a sufficient consent has been filed by the parties to give the referee jurisdiction to hear and determine this claim. Certainly the stipulation filed by the parties before the referee during the hearing of the proceeding was a consent in writing. Admittedly there is no written approval of this consent in writing by the surrogate. However, I think that such consent may be now approved by the surrogate. Such approval at this time will be sufficient to bring the matter within the provisions of section 2718 of the Code of Civil Procedure. This practice seems to have been followed in the case of Wait v. Van Demark, 2 N.Y.S. 265.
The referee's report is in all respects confirmed.
Decreed accordingly.