App. Div.] First Department, November, 1911. duly demanded from the defendant, no part of the same has been paid and there is due and owing on the said instrument or promissory note, the whole amount thereof with interest from May 19th, 1908." The record shows that a jury was impanelled and then proceeds: "The defendant, the maker of the note sued on, was present at the trial. The court proceeded to take the evidence of the respective parties. After each side had rested the following motion was made: Mr. Zaring: I move to dismiss the complaint upon the ground that it appears on the face of this instrument that it was not payable until after death. The court: Then you mean on the ground that the facts stated in the complaint do not constitute a cause of action? * * I have given some thought to the construction of this instrument, and I am impelled to the conclusion that it is not a demand note. My conclusion is based entirely upon the terms of the note itself without reference to the testimony taken," and dismissed the complaint. From the judgment entered thereon this appeal is taken, the record disclosing none of the evidence. In Hegeman v. Moon (131 N. Y. 462) PECKHAM, J., said: "A written statement that a certain amount of money is due a payee therein named, followed by the signature of the maker of the statement, implies that the money is due from the maker and is an indebtedness from him to the person to whom the money is thus acknowledged to be due. (Kimball v. Huntington, 10 Wend. 675.) The acknowledgment of the indebtedness, and that it is due implies a promise to pay it on demand. It is a promissory note within the statute." In that case the instrument directed the maker's executors to pay a specified sum one year after her death. The court proceeded: "The time when the money is to be payable is, however, altered by the direction given to her executor to pay it one year from her death. If there were no limitation, an acknowledgment that the debt was due would imply that it was payable at once or on demand. The direction is, however, in the nature of a promise and expresses a time of payment and, therefore, excludes the presumption that it is payable immediately, which APP. DIV. VOL. CXLVI. 55 First Department, November, 1911. [Vol. 146. would otherwise arise from the use of the word due. Being a promissory note it imports a consideration.” In Carnwright v. Gray (127 N. Y. 92) the instrument sued on was as follows: "Thirty days after death I promise to pay to Cornelius Carnwright fifteen hundred dollars, with interest." Plaintiff gave no evidence of the transaction out of which the instrument arose and none of the actual consideration thereof, but having offered testimony tending to prove the genuineness of the maker's signature, put the note in evidence and rested his case. After citing the statute in regard to promissory notes and a number of cases, BROWN, J., said: "No authority is cited in the courts of this State or of England holding that a non-negotiable note is not within the terms of the laws cited, and we are of the opinion that the language of our statute includes a note payable to a person without words of negotiability. The instrument sued upon being, therefore, a promissory note within the statute of this State, it follows that it imports a consideration. A promissory note is defined to be a written engagement by one person to pay absolutely and unconditionally to another person therein named, or to the bearer, a certain sum of money at a specified time or on demand. (Story on Prom. Notes, § 1; Coolidge v. Ruggles, 15 Mass. 387.)" * * The Negotiable Instruments Law (Consol. Laws, chap. 38; Laws of 1909, chap. 43) provides (§ 26): "An instrument is payable on demand: 2. In which no time for payment is expressed." (§ 29) "The instrument need not follow the language of this chapter but any terms are sufficient which clearly indicate an intention to conform to the requirements hereof." (See, also, Gen. Laws, chap. 50 [Laws of 1897, chap. 612], §§ 26, 29.) I am of the opinion that the instrument at bar is a promissory note, payable upon demand; that the words "and in the event of my death I hereby authorize and direct the payment of the same out of the funds of my estate" are surplusage and in no degree affect the preceding statement: "I promise to pay her the sum of Thirty thousand dollars," and, therefore, the time of payment was not postponed until the death of the maker of the note. App. Div.] First Department, November, 1911. The paper, while a promissory note, was non-negotiable. This suit is between the maker and the payee and all the defenses are available. The dismissal of the complaint solely upon the ground stated was error and the judgment should be reversed and a new trial ordered, with costs and disbursements to the appellant to abide the event. INGRAHAM, P. J., LAUGHLIN, SCOTT and MILLER, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event. THE BANKERS SURETY COMPANY, Appellant, v. CHRISTIAN D. MEYER and CHRISTIANE MEYER, as Administrators, etc., of FREDERICK MEYER, Deceased, Respondents. First Department, November 17, 1911. Decedent's estate — claim not maturing within three years - suit in equity to have validity of claim determined -- equity -jurisdiction over executors and administrators. Where the maker of promissory notes is dead and the instruments will not mature within three years after the appointment of his administrator, who rejected them, the holder may maintain a suit in equity against the administrator to have the notes declared to be valid instruments and for the purpose of having a portion of the estate set aside to meet the notes as they mature, if the administrator has made no offer to refer the claim, has not consented that the claim be heard and determined by the surrogate on the settlement of his accounts, and an action against the administrator would be inadequate owing to the fact that it cannot be commenced for three years, during which time the estate may be squandered, wasted or distributed. An executor or administrator is a trustee and subject to the jurisdiction of a court of equity. APPEAL by the plaintiff, the Bankers Surety Company, 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 5th day of June, 1911. First Department, November, 1911. [Vol. 146. William H. Hamilton, for the appellant. Rudolph F. Rabe, for the respondents. SCOTT, J.: Appeal from an order denying plaintiff's motion for judgment upon the pleadings, which consist of a complaint and a demurrer for general insufficiency. The complaint alleges, after a statement of plaintiff's incorporation and capacity to sue, that on or about December 15, 1908, one Frederick Meyer duly made, executed and delivered to one Louis Kessel his five promissory notes in the sum of $1,200 each, with interest, payable on the fifteenth day of December in each year from 1914 to 1918 inclusive; that thereafter said Kessel indorsed and delivered the notes to plaintiff who now owns and holds them; that said Frederick Meyer, the maker of the notes, died intestate on September 23, 1909, and that thereafter letters of administration upon his estate were duly issued to defendants, who duly qualified and still are and remain such administrators; that the claim arising upon said notes was duly presented to said defendants who refused and rejected it. All of these facts are of course admitted by the demurrer. The prayer for relief is that the notes be declared good and valid instruments, and that a sufficient amount of the property of the decedent be set aside to meet and pay said notes as they respectively mature. The plaintiff finds itself in a peculiar position, to which the Code remedies for determining and enforcing claims against a decedent's estate are apparently inapplicable. The remedies provided by the Code of Civil Procedure for the enforcement of a claim by the claimant are threefold: First. The claimant may accept the offer of the executor or administrator, if made, to refer the claim to a referee (Code Civ. Proc. § 2718), but this is of no avail to the plaintiff since no offer has been made by the administrators. Second. The claimant may within six months after the rejection of the claim, file a written consent with the surrogate that the claim be heard and determined by him upon the settlement of the account of the executor or administrator, and and if a similar consent is filed by the executor or administrator, the surrogate acquires jurisdiction to hear and App. Div.] First Department, November, 1911. determine the claim. (Code Civ. Proc. §§ 1822, 2743.) This remedy, however, is unavailing in the present case for lack of a consent by the administrators. Third. The claimant may commence an action against the executor or administrator for the recovery of the claim. (Code Civ. Proc. § 1822; Clark v. Scovill, 191 N. Y. 8.) The last-mentioned remedy, which is the only one open to a claimant except with the consent of the executor or administrator, can scarcely be deemed adequate under the circumstances disclosed in the present case. Section 1822 provides that an action upon a disputed claim must be begun "within six months after the dispute or rejection, or, if no part of the debt is then due, within six months after a part thereof becomes due." This clearly recognizes, as is undoubtedly the law, that an unmatured debt is entitled to the same protection and remedies as one which has matured before the death of the debtor, and section 2745 requires the surrogate, in certain cases, to require a fund to be set aside to meet unmatured claims. Under section 1822 the plaintiff cannot presently commence an action at law, because no part of the debt is due, or will be due until December 15, 1914, three years from the present time. Whether he could or must sue upon all the notes within six months after the first one becomes due may be a matter of some doubt. (See Cornes v. Wilkin, 79 N. Y. 129.) That, however, is not important to consider now. It is sufficient for present purposes that an action at law must, at all events, be postponed for three years. As was pointed out in Clark v. Scovill (supra) it was the purpose of the Legislature in adopting those sections of the Code of Civil Procedure which deal with the adjustment of claims against decedents' estates to provide a method whereby, if the parties so desired, such estate might be wound up speedily and inexpensively, but where one party or the other shows an indisposition to avail of those provisions, it is the right of a claimant to ask for reasonable protection and security. The position of a claimant who holds a disputed unmatured claim upon which he cannot for a considerable period of time commence an action at law is peculiarly unfortunate. He cannot, in this county, compel the filing of an inventory (Matter of Huntington, 39 Misc. Rep. 477), and, therefore, cannot proceed for the removal |