Opinion
June 27, 1921.
Louis J. Halbert, for the appellant.
Patrick J. O'Beirne, for the respondent.
Present — BLACKMAR, P.J., RICH, KELLY, JAYCOX and MANNING, JJ.
It is argued by the appellant that the Surrogate's Court had exclusive jurisdiction over the cause of action. With this we cannot agree. The general jurisdiction in the Supreme Court, secured to it by article 6, section 1, of the Constitution, is not affected by the legislation regulating practice in the Surrogate's Court. The only effect of these statutes upon the right to maintain an action in a court of general jurisdiction upon a claim against a decedent's estate is to prescribe a short Statute of Limitations in case a claim is presented and rejected, or in case an objection to the allowance of a claim by the representative is sustained by the surrogate. (Code Civ. Proc. §§ 2680, 2681.) In the last analysis the jurisdiction conferred on the surrogate by subdivision 4 of section 2510 of the Code of Civil Procedure is exercised only by consent of the claimant. In case a claim is made and rejected or is allowed by the representative, and an objection thereto sustained by the surrogate, the jurisdiction of the Surrogate's Court to determine the claim upon the judicial settlement of the accounts of the executor or administrator depends on the forbearance of the claimant to bring an action within the time limited therefor by section 2681. This forbearance is equivalent to a consent that the claim be adjudicated by the Surrogate's Court.
Neither the amount of the plaintiff's claim nor that the claim was for necessaries was disputed at the trial or on this appeal. The law of this State on the subject of the parent's liability for necessaries is stated by the Court of Errors in Van Valkinburgh v. Watson (13 Johns. 480) as follows: "A parent is under a natural obligation to furnish necessaries for his infant children; and if the parent neglect that duty, any other person who supplies such necessaries is deemed to have conferred a benefit on the delinquent parent, for which the law raises an implied promise to pay on the part of the parent." ( De Brauwere v. De Brauwere, 203 N.Y. 460.) The record abundantly shows that the parent has neglected the duty. The agreement with the wife did not relieve him from the duty. The pecuniary allowance which he made in the articles of separation may have been evidence of what he did toward performance; but even that ended with the death of the wife leaving no property. From that time the duty existed unimpaired, and nothing was done by the testator toward discharging it. In other words, the duty was neglected, and under the doctrine above set forth the law raises an implied promise to reimburse the plaintiff, who supplied the necessaries.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.