In the Matter of the Estate of Angelina Unseld, Deceased, 43 Misc. 2d 106

John D. Bennett, S. This is an application under

section 211-b of the Surrogate’s Court Act, in which the executrix requests the Surrogate to entertain her petition praying that the Department of Mental Hygiene be cited to show cause why its claim should not be disallowed.

Section 211-b, which became effective March 1, 1964 (L. 1963, ch. 488), reads in part: ‘‘ Whenever * * * an executor or administrator has reason to question the validity of any claim * * * and no action or proceeding to enforce such claim has been instituted and the estate has sufficient assets to permit payment of the claim in full, such executor or administrator may present a petition to the surrogate setting forth the facts and praying that the claimant or possible claimant be cited to show cause why his claim, if any, should not be disallowed.” (Italics supplied.)

Section 211-c of the Surrogate’s Court Act, effective March 1,1964, reads: “ Nothing in this

article shall prevent a claimant from commencing an action on his claim at law or in equity, provided that where a claim has been presented and rejected in whole or in part such action must be commenced within sixty days after such rejection.” From the petition it appears that the claim was presented on April 2, 1964 and rejected on April 20, 1964. The pertinent question, in the exercise of the Surrogate’s discretion as to whether or not he should entertain this petition, concerns the effect of

section 211-c and the 60 days the claimant has to commence an action after rejection of his claim. It could be argued that the Surrogate should entertain the petition at this time but postpone any determination thereupon until 60 days following the date of rejection. However, the court believes the more orderly process would be to allow the running of the 60 days for the claimant to commence an action before this court entertains the petition.

Entertaining the petition at this time would not deprive the claimant of his right to proceed in another jurisdiction within the 60 days and could result in a multiplicity of proceedings. The court, therefore, declines to entertain this application at this time but will entertain it following 60 days from the date of rejection of the claim, provided the claimant has not commenced an action pursuant to

section 211-c of the Surrogate’s Court Act.