Overheiser v. Morehouse

The plaintiff, who has obtained the report of a referee in his favor for the sum of $4,468.62,- moves for the confirmation of the report, and for costs.

To the former, as there has been no case with exceptions presented, nor any cause shown why the plaintiff should not have a confirmation of the report, he is entitled, but to the latter there are serious objections to be considered.

It was a reference under part two, chapter six, title 3, article 2 and section 36 of the Revised Statutes (2 Edm. R. S. 91). The claim as presented was for $9,013.08, upon which there was a credit given for $1,800, making the balance claimed by the bill as originally presented $7,213.08. Subsequently, however, an amended bill was presented, by which the balance claimed was $9,462.68.

The report of the referee found the indebtedness of the deceased to the plaintiff to be $7,829.99, and that of the plaintiff to the deceased $4,072.73, leaving due from the latter, at the time of death, to the former, $3,757.26. The referee allowed interest on the balance found due to the plaintiff from the day of the commencement of this proceeding (May 3, 1882), which was $711.36, making the total sum found due at the date of the report (June 26, 1885), $4,468.62.

It was conceded upon the argument, and so the law is, that to justify the recovery of costs as in an action in which costs are given, the claim of the plaintiff must have been unreasonably resisted. Whether or not the plaintiff is entitled to referee’s fees and disbursements will be hereinafter considered, but the question first to be discussed is, was the payment of the claim of the plaintiff unreasonably resisted or neglected ?

The reduction of such claim from $7^ 213.08, as -originally presented, to $4,468.62, and the establishment

It was strenuously, however, urged by the counsel of the plaintiff that as he had proved his claim by the defendant, she had full knowledge of its justice, and therefore it should have been paid without a reference. To this argument there are two answers : 1st. The justice of the cause of action of the plaintiff alone, unless the bill as presented gave a proper credit, would not make resistance to the payment of the balance demanded unreasonable. The defendant may have proven the integrity and propriety of the plaintiff’s charges, but either her evidence or some other testimony submitted to the referee satisfied Mm that the credits or set-off upon or to the bill as presented were over two thousand dollars greater than the plaintiff’s affidavit attached thereto admitted. The resistance was to the payment of the balance demanded, and its large reduction is the justification of the defense made. 2nd. The. defendant (the executrix) is the sister of the plaintiff. The claim of the plaintiff was for board of the deceased and his wife (the defendant), and horse keeping during a period of six years (from February 2, 1875, to February 2, 1881); and as the payment and allowance of such an account, involving, among other things, questions of value, by a sister in favor of a brother, out of the residuary of an estate devised to strangers, was sure to be contested upon an accounting, it was not unreasonable that the defendant should for her own protection insist that the amount to be allowed and paid should be fixed and established by a legal proceeding. Neither was it unreasonable for the residuary legatee under the will of the

For the reasons which have just been given, the motion, so far as it asks for costs generally and for an allowance, must be denied, and with the enunciation of this conclusion we are brought to the second question : Is the plaintiff entitled to referee's fees, witnesses’ fees and disbursements %

It will be conceded that by section 317 of “The Code of Procedure ” such fees and disbursements were given. That section provided that, when a claim against a deceased person’s estate was referred under the Revised Statutes, as this one was, “ the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law.” It will be further conceded that if this provision is unrepealed, or if it has since been re-enacted, the plaintiff is by this motion entitled to their allowance. In Sutton v. Newton (7 N. Y. Civ. Pro. R. 333), the judge writing this opinion, after a careful examination of the question, came to the conclusion that the provision quoted was still in force. That conclusion, in the light of Miller v. Miller ( 32 Hun, 481 ) and of-an unreported case (Dodd v. Dodd), to which allusion will be pres

Section 317 of the old code, “ The Code of Procedure,” regulated the recovery of costs in an action by or against an executor or administrator, trustee of an express trust or a person expressly authorized by-statute to sue. The same section further declared (a quotation already in part given is repeated to show its connection): “But this section shall not be construed, to allow costs against executors or administrators, where they are now exempted therefrom, by section 41 of title 3, chapter 6, of the second part of the Revised Statutes ; and whenever any claim against a deceased person shall be referred pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law.”

The first thirteen chapters of our present code, “The Code of Civil Procedure,” took effect (chapter 318, Laws of 1877) September 1, 1877. That act (chapter 318, Laws of 1877) was passed May 22, 1877, and it suspended the operation of the present code—known when first enacted as “The Code of Remedial Justice”—from May 1, 1877, the date when it originally took effect, to September 1, 1877, as just stated. The general repealing act of “The Code of Procedure” was passed June 5, 1877, and it declared among other things: “Section 1. The following acts and parts of acts, heretofore passed by the legislature of the State, are hereby repealed, to wit: . . 4. All the Code of Procedure ; except the following sections and parts of sections thereof, to wit: . . Sections three hun

As, then, section 317 of the old code was expressly retained by the repealing act of 1877, it is clear that, after the first thirteen chapters of our present code took effect, and until at least the subsequent nine chapters of the present code, known as “ Part Two of The Code of Civil Procedure,” took effect (September 1,1880), “the prevailing party,”in a reference of the character of the present, recovered “ the fees of referees and witnesses and other necessary disbursements to be taxed according to law.” In an action, however, against executors or administrators, even though a recovery was had, no costs were taxable, unless the court so ordered upon the ground, either that the defendant had refused to refer the claim, or that he had unreasonably neglected or resisted payment (2 Edm. R. S. 92, § 41). By sections 1835, 1836 and 3246 of such “Part Two of the Code of Civil Procedure” the rule for the recovery of costs in an action,” prescribed by section 317 of the old code, was preserved. The present code, however, neither in the section referred to, nor in any other part, expressly states whether or not the remaining provision of section 317 of the old code, which provided that in references of the character of the present, the prevailing party should “ recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law,” is still in force. It is true that section 3246 of the present code is a substantial re-enactment of section 317 of its predecessor, with the clause of that section providing for disbursements in references of the character of this omitted ; but as such omission merely, without a declaration that the new section is a substitute for or a repeal of the old, does not make any inconsistency between the two, it follows that the new section is on

Part two of the present code passed the legislature May 6, 1880. Four days afterwards (May 10; 1880) chapter 345 of the Laws of 1880 was passed. By its first section, subdivision 4"(page 369), the old code was repealed. If that act had contained nothing more, very clearly the whole of the old section 317 would have been swept away. It did not, however, stop with a simple repeal, but it further provided (pages 874, 375): “§ 3. The repeal effected by the first section of this act is subject to the following qualifications : . . 8. It does not affect the right of a prevailing, party to recover the fees of referees and witnesses and his.other necessary disbursements upon the reference of a claim against a decedent, as provided in those portions of the Revised Statutes left unrepealed after this act takes effect.”

The point now distinctly presented is, do the words—“as provided in those portions of the Revised Statutes left unrepealed after this act takes effect”— refer .to ‘ ‘ the fees of referees and witnesses and his other necessary'disbursements,” or do they refer to “the reference,” of which the reservation also speaks % In other words, was it the intention of the clause to

Certainly, as Miller v. Miller is a ' decision of the general term of this department, it should be followed unless it is clearly erroneous. The code, however, has been so often changed, and those • changes are so often hidden in the maze of conflicting :statutes, that hardly the same force can be attached to a decision as to its precise condition upon a single point, as there must be to one enunciating a legal principle. Where the special term differs in the former case, and such difference amounts to a conviction, it cannot be disrespectful to submit to the appellate tribunal the reasons of a dissent, to the end that the questions in dispute may be thoroughly discussed and more deliberately considered. When the case of Sutton v. Newton was decided, the attention of the judge writing this opinion was directed by eminent counsel, not interested in that case and occupying a judicial position, to Hall against Edmunds and the various statutes therein referred to as being a better exposition of those statutes than Miller against Miller. A careful examination of the question then made induced the decision in Sutton v. Newton, with the conviction that the view expressed in the opinion was so clear that the question should be again presented to the , appellate tribunal. The disbursements, which that opinion holds the prevailing party in that case was entitled to as matter of right, were also properly allow

Prior to an analysis of the saving clause in the repealing act of 1880, which will be presently attempted, it is well to bear in mind what has been established in the preceding part of this opinion, to wit: 1st—By the old code (§ 317), in references of the character of the present, “ the prevailing party” was “entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law.” 2d—When the first thirteen chapters of our present code took effect, by the repealing act of 1877 (ch. 417, Laws of 1877), section 317 was continued in force. 3d—When the^ law was passed (May 6,1880) adopting the remaining nine chapters of the present code, said section 317 was still in force. It also remained in force after their adoption, because the re-

We now understand the situation of the question under discussion, when four days after the adoption by the legislature, of part two of the present code, that body passed the repealing act of 1880. The effect produced by the adoption of the nine concluding chapters of the present code was the preservation of the old rule in regard to costs “in an action’’' against an administrator or executor. .For the purpose of

The exact similarity of the language of the saving clause of the repealing act just quoted, with that of section 317 aforesaid proves that the framer of such saving clause penned it with his eye upon the provision of the section'we are discussing. The identity of the language used by both can be accounted for upon no other hypothesis. When, therefore, in order to specify in what cases the “right” to such disbursements was given, there were added to those giving them, these further and additional words, to wit, “upon the reference of a claim against a decedent, as provided in those parts of the revised statutes left, unrepealed after this act takes effect,” the meaning was unmistakable. It was not the right to sundry disbursements given by the revised statutes which was preserved, but the “right of a prevailing party . .. upon the reference

Under such circumstances to say,' as was hastily said in Miller v. Miller ( 32 Hun, 481 ), that the sentence in the repealing act “has reference simply to provisions of the revised statutes,” is to declare that such sentence has no meaning whatever. An exception is only necessary when without it, the thing excepted would be affected. If any part of the revised statutes, left unrepealed by the repealing act, gave the disbursements saved by such act, it was unnecessary to declare that such part of the revised statutes was unaffected by the repeal. To make that declaration is equivalent to an announcement that, what in fact is unrepealed is unrepealed. Neither could the clause have been intended to preserve the “right” to disbursements given by the revised statutes, because such statutes, neither then or at any time, gave them; nor could its intent have been to preserve the power in the court to award such disbursements as a part of

Unless, therefore, the court is prepared to say that the clause is wholly useless, it must be held, as its plain language clearly requires, that the referee’s fees, the witnesses’ fees and disbursements are still recoverable by the prevailing party in a reference of this character, as they have been for many years. The equity of protecting a successful party against his necessary disbursements in the establishment of his claim, which are of tener greater than the recovery, was as great when the act of 1880 was passed as it had ever been. No complaint had ever been made against its wisdom ; and when the right to recover sundry disbursements is plainly and unmistakably retained or given, it is not a wise exercise of j udicial power to render inoperative clear words, even though in the attempted preservation or gift a reference was made to a wrong statute, as the one previously conferring the same right (People ex rel. Comstock v. Lucas, 25 Hun, 610 , see 611). No one can doubt that the intention was to preserve “the right of a prevailing party to recover the fees of referees and witnesses and his other necessary disbursements upon the reference of a claim against a decedent,” for the act so declares, and che exact words have just been quoted.

If the grammatical construction of the sentence giving them is, as the general term assumed in Miller •y. Miller, that the framer of the clause supposed they were given by the revised statutes, and therefore made

The opinion would close at this point, if the counsel of the defendant had not, as he properly did, called the attention of the court to the opinion of Judge Bocees in the unreported case of Dodd v. Dodd, decided by the general term of this department, in which the writer of this opinion as a member of such

The explanation is simple. Bodd v. Bodd was not a case argued orally. It was submitted to the court upon the printed case and points. Mr. B. S. Potter was counsel for the plaintiff, and Mr. P. C. Ford for the defendant. The special term (Judge J. Potter presiding) had allowed the ’plaintiff full costs upon the ground that the claim had been unreasonably resisted. In his points (and they are now before the writer) the counsel for the plaintiff nowhere discusses the question of his right to disbursements under section 317 of the old code, nor is any reference made to the repealing act of 1877, nor to that of 1880. The aim of the points is to show that “costs are in the discretion of the court; ” and that they were in the discretion of the court because the Revised Statutes gave the court the power to “adjudge costs as in actions against executors,” and also because the reference was a “special proceeding,” and not “an action.” He further claimed that “section 3240 of the code provides expressly that costs in a special proceeding, not specially regulated by the code itself, may be awarded to any party, in the discretion of the court. Costs being in the discretion of the court to give or withhold, the appellate court will not reconsider the question.” The points then proceed to argue that the discretion of the special term was wisely exercised.

The counsel for the defendant argues in his points (they are also .before the writer) that costs should not have been allowed because, among other reasons

The case was assigned to brothér Bookes to examine. The plaintiff, as has been said, did not claim disbursements apart from costs, and made no allusion to the condition of the law upon the subject. The defendant, also, did not refer to the statutes at all, and only insisted that no disbursements separate from costs could be recovered, because the provision in the did code giving them had “been omitted in the new code.” The learned and careful judge, to whom the case was committed for examination, was thus easily led into error. Through several pages in an exhaustive opinion he demonstrates that the plaintiff should not recover costs. When he reaches the question of disbursements, having been thrown off his guard by the want of presentation of that question by the plaintiff’s counsel, he simply adopts the erroneous view of defendant’s counsel, saying: “ Under the former code (§ 317) the plaintiff would have been entitled to recover the fees of the referee and witnesses and other necessary disbursements to be taxed according to law,’ although not entitled to full costs, as in an action (Pinkernelli v. Bischoff, 2 Abb. N. C. 107 ; Pursell p. Fry, 19 Hun, 595 ). Such allowance would seem unjust in a case like the present, when the entire contest was over an item found to be fictitious. But the clause of section 317 of the former code above cited is omitted from section 1836 of the Code of Civil Procedure, which latter section superseded the former and controls the case now before us (See also § 3246).” This is all the opinion says upon the question.

Under the circumstances narrated, the concurrence of the writer in Dodd v. Dodd was given. None of the questions which have been considered were discussed. Nay, the counsel for the plaintiff, by his silence, and by his line of argument, conceded that the disbursements apart from the costs were not recoverable; and a brother judge, who had examined the question, fell into an error. The opinion of Judge Bockes was carefully read upon the main question discussed, but that in regard to disbursements&emdash;substantially conceded in the points&emdash;was not considered as it should have been. The case had been entirely forgotten when the opinion in Sutton v. Newton was written. Had it been remembered, it would not have changed the result, but would only have induced the fuller, and it is hoped more satisfactory, discussion of the question, which has now been attempted.

The motion for costs generally and for an extra allowance must be denied, but the order should provide that the plaintiff shall recover the fees of the referee and witnesses, and his other necessary disbursements, no be taxed according to law.