Pauley v. Millspaugh (95 A.D. 208, 1904)

Jenks, J.:

The defendants appeal from an order made at Trial Term charging costs, disbursements and an allowance against the property of their testator. The motion was made after the trial of the issues, and the record contains affidavits of the respective attorneys which were read on the motion. The learned justice who presided at the trial and who granted the motion certifies that the payment of the claim in suit was unreasonably resisted and neglected, and that the defendants did not file the consent provided for by section 1822 of the Code of Civil Procedure. There is no pretense that the defendants ever filed the consent provided for in the said section,- but the learned counsel for the appellants contends that the allowance could not have been justified under section 1836 of the Code of Civil Procedure upon the ground of such omission, for the reason that the plaintiff’s claim, which was rejected on January 27, 1903, was put in suit in May of that year, and, consequently, before the expiry of five months and twenty days from January 27, 1903. I think that this court is committed to this view by its judgment in Ballantyne v. Steenwerth (79 App. Div. 632), which followed Hart v. Hart (45 id. 280). But in Ballantyne’s Case (supra) we also necessarily decided that the provisions of section 1836 of the Code of Civil Procedure are alternative, i.