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Dawbarn v. Fleischmann

Supreme Court of New York, Appellate Division

July 7, 1911

ROBERT H. M. DAWBARN, Respondent,
v.
SIMON FLEISCHMANN, as Executor, etc., of MOSES HIRSHFIELD, Deceased, Appellant.

Page 58

APPEAL by the defendant, Simon Fleischmann, as executor, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of June, 1911, denying the defendant's motion for judgment on the pleadings.

COUNSEL

Simon Fleischmann, for the appellant.

Henry C. Quinby, for the respondent.

OPINION

DOWLING, J.:

Defendant appeals from an order denying his motion for judgment on the pleadings and the questions presented are: (1) Whether the facts set forth in the second separate defense constitute a bar to plaintiff's recovery, in that his claim is within the short Statute of Limitations; and (2) whether the reply served by plaintiff sets up facts sufficient to prevent the start or continuance of the running of the statute.

The action is brought to recover the sum of $2,000 for professional services rendered by plaintiff as a physician and surgeon, between the 15th and 22d days of July, 1909, at the special instance and request of Moses Hirshfield, in the treatment of his sister Elizabeth. Hirshfield died April 6, 1910, and defendant duly qualified as executor of his last will and testament. The complaint sets forth due demand upon defendant and his refusal to pay the claim.

By his second separate defense defendant admits the presentation of plaintiff's claim against the estate on June 29, 1910, and avers that on July 6, 1910, he disputed and rejected the same by mailing both to plaintiff and to his attorney by registered

Page 59

letter, at their respective addresses, a notice of rejection, whereof the following is a copy:

'SURROGATE'S COURT--ERIE COUNTY.

___________________________ )

In the Matter of the Estate )

of )

Moses Hirshfield, deceased. )

___________________________ )

'To ROBERT H. M. DAWBARN, M. D.,

' # 105 West 74th Street,

'New York City, and to

'HENRY C. QUINBY, Esq., his attorney,

'# 165 Broadway,

'New York City:

'GENTLEMEN.--You will please take notice that the undersigned doubts the justice and validity of the claim of the above-named claimant, Robert H. M. Dawbarn, M. D., of Two Thousand Dollars ($2000) against the above named estate, heretofore presented to me, and I hereby dispute and reject the same and offer to refer it, under the statute, to some suitable and proper person as referee, to be approved by the Surrogate, to hear and determine the same, according to the statute, or consent that the said claim may and ...


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