Daggett v. Mead

Headnote

Costs and Disbursements against Executors and Administrators on Reference of Claim.—Code of Civil Procedure.

Where a claim against a decedent’s estate is materially reduced upon a reference tinder the statute, thus making it apparent that' pay

ment thereof has not been unreasonably resisted or neglected, neither costs nor disbursements can be recovered by the claimant under Code Civ. Pro. §§ 1835, 1838. Tt seems, that under those sections, the right to recover disbursements depends upon the allowance of costs.

Motion for confirmation of referee’s report and for costs and disbursements.

The plaintiff presented a claim to the defendant as executor of the last will and testament of Nancy Mead, deceased, for §2,300.51, for board, care and necessaries furnished testatrix during the two years preceding her decease. The executor rejected the claim and refused to pay it as exorbitant. A stipulation was made, whereby it was referred under the statute. The referee found in favor of the plaintiff to the amount of $1,273.98, reducing plaintiff’s claim §1,026.53.

Plaintiff made a motion at special term for confirmation of the report, and for costs and disbursements. Defendant opposed the motion for costs and disbursements, on the grounds : 1st. That the claim was not unreasonably resisted as it was reduced. 2nd. That the part of section 317 of the Code of Procedure allowing disbursements whenever there is a recovery, has been repealed by chap. 417, Laws of 1877, and is not retained in the Code of Civil Procedure. 3rd. That neither costs nor disbursements should be allowed when the claim of plaintiff is materially reduced, for it is not unreasonably resisted or neglected in such case, within the meaning of sections 1835 and 1836.