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Rogovin v. Kridel

Decided: January 31, 1936.

HELEN ROGOVIN, PLAINTIFF-APPELLANT,
v.
HARRY KRIDEL ET AL., EXECUTORS OF THE ESTATE OF GEORGE KRIDEL, DECEASED, DEFENDANTS-RESPONDENTS



On appeal from the Essex County Circuit Court.

For the appellant, Edward R. McGlynn.

For the respondents, Samuel K. Sobel.

Campbell

The opinion of the court was delivered by

CAMPBELL, CHANCELLOR. The plaintiff below was the holder of a bond and mortgage, executed by George Kridel, and which, at the time of his decease, was not due by reason of maturity or default, and she filed with his executors proof of the amount due thereunder. The executors gave notice that they disputed the claim and plaintiff then brought action to substantiate it.

The executors, defendants below, upon notice, moved to strike the complaint because it "discloses no cause of action in that by reason of the statutes in such case made and provided the plaintiff may only maintain an action against the defendants after a determination of the sum, if any, due upon the bond after the foreclosure of the accompanying mortgage, and for the further reason that by virtue of the aforesaid statutes and the terms of the bond, no sum is presently due and owing for which the plaintiff may maintain an action."

The complaint was stricken upon the ground "that the claim of the plaintiff is not due and payable" and summary judgment was entered in favor of the defendants below.

There was a counter-motion on the part of the plaintiff below to strike defendant's answer in respect to paragraph 2 as frivolous; paragraph 3 as sham and untrue; the first separate defense in that it was frivolous and likewise as to the second separate defense.

Plaintiff below appeals from this judgment.

The grounds of appeal, six in number, may be said to raise three alleged errors: (1) Error in striking the complaint; (2) error in refusing to strike the answer; (3) error in refusing to direct a summary judgment in favor of the plaintiff.

It appears to us that the learned Circuit Court judge, sitting as Supreme Court commissioner, fell into error.

Generally speaking a claim against a decedent's estate may be presented to his personal representatives whether due presently or in the future. 3 Comp. Stat., p. 3834, ยง 69.

It may be conceded, therefore, that the judgment under review cannot be sustained upon the ground assigned. It remains to be determined whether or not it can be affirmed upon any other legal ...


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