Noyes v. Children's Aid Society

affect the power there given—one is, “in lien of costs,” which restricts the allowance of a gross sum to the cases in which, under the Revised Statutes, costs, according to a fee-bill, might have been awarded. The other is, according to the “manner as are (sic) now prescribed by the Code of Procedure in civil actions.” The last quoted phrase does not grant a power any larger than that given by the Revised Statutes, so far as the occasion for giving allowances to both parties, or for the benefit of both parties, is concerned. The surrogate’s court, in giving allowances under the act of 1870, was confined to the manner (i. e., the way of managing (see Richardson's Dictionary, “Manner”) laid down in sections 308 and 300 of the Code. Neither of them provide for an allowance to any party but the one which prevails (Downing v. Marshall, 37 N. Y. 384 ). But they fix the maximum limit of the amount which may be allowed, and prescribe the process by which that amount may be arrived at. This method or manner the surrogate’s court must follow; and this is what is meant by the phrase from the act of 1870 secondly above quoted. Section 318 (Code of Pro.) relates to the supreme court alone, and to a certain class of cases in it.

The surrogate’s court may give allowances, however, in lieu of costs ; and the Revised Statutes declare when it may award costs; and, by the act of 1870, whenever it may award costs by the Revised Statutes, it may give an allowance to counsel instead of costs to the party. The Revised Statutes confer a discretionary power to award costs. The surrogate may withhold costs from both or all parties. He may award them to the party who, in his judgment, is entitled to them. This does not mean the party who is technically successful—that is, who obtains a decree in his favor upon the question contested.

It means the party whose behavior in the circum

stances provoking the litigation, whose situation in relalation to the estate, or the particular subject in controversy, is such that it is equitable and just that he be remunerated for his expenses in the litigation. The surrogate may also charge the costs of one party upon another, or upon the estate. The claim that his discretion stops here, and that he may not in any case give costs to both or all parties, is placed upon very narrow grounds. It is put solely upon the words “ the party . . . entitled.” It is argued that the use of the definite article “the” in connection with the phrase “party entitled,” shows that the legislature meant that the surrogate should determine which one party in particular of all contesting before him is entitled to costs. This is too narrow, as a matter of definition. It is manifest that, in all our uses of the article “The,” it directs what particular thing or things we are to take or assume as spoken of. “ ‘ The ’ (says Dr. Lowth) determines what particular thing is meant,” i. e., what particular thing we are to assume to be meant (Richardson’s Dicty. in voce). Yet this article is not always used to mean but one.

Take the well-worn and well-wearing quotation: “The man that hath not music in his soul is fit for treason, stratagem and spoils.” The meaning of the article is not exhausted when one man is found with no music in himself. “The man” means there “any man.” So in this statute, “the party . . . entitled” means “any party entitled.” It is too narrow, also, in view of the equitable character of the litigation in surrogate’s court, involving, as parties, executors, administrators, trustees, cestuis que trust, legatees, heirs-at-law, next of kin, infants, married women, guardians, wards, in whose favor or to whose harm rules as to the costs have grown up in equity from a long course pf adjudications, and in which cases great latitude has been taken by courts of equity (still, however, regu

lated by established principles) in granting or refusing costs, and in charging them upon persons or estates. A surrogate’s court is in its nature a court of equity, and has the discretion in regard to costs which that court has. It is too narrow, also, in view of the numerous different parties, with entirely or partly friendly or opposing interests, who contest in surrogates’ courts.

It is impossible to say that the legislature meant that the surrogate should determine, from among them all, the one party, who in his judgment was alone entitled to costs. There must be a larger discretion than that, or great hardship must be inflicted and manifest equities disregarded.

But this does not compel us to affirm the decree of the surrogate in this case, giving allowances. For, this view being taken, was the general term powerless to remedy what it saw was an erroneous exercise of discretionary power, and one of the shoots of a great and growing evil. A decree of a surrogate granting allowances is the subject of appeal upon the merits (Lain v. Lain, 10 Paige, 191; Wilcox v. Smith, 26 Barb. 316 ); and may be reviewed by the general term; and, if without justification in the facts and circumstances of the case, may be reversed entirely, or modified and reduced (Code of Pro. § 471; 3 R. S. 605, § 79; 10 Paige, supra).

In the case before us the order of the general term reversing the decree of the surrogate is silent as to the ground of reversal. We are not able to say whether the reversal was for a supposed want of power in the surrogate’s court to give an allowance to more than the prevailing party in the contest, or whether it was, that the judgment of the general term was, on all the facts and circumstances of the case, that the appellants were not entitled to costs. To be sure, the opinion delivered by the learned presiding justice is very clear in declaring a want of power. That, however, is no

part of the record, and may not be looked into to find error.

As then the general term had the power to reverse for the cause above stated, and we are not able to say that that was not the cause of its judgment, and as we have no power to reverse an order resting in discretion of the court below (Code, § 11), nor have we the desire to do so in this case, the order of the general term should be affirmed.

All the judges concurred—Church, Ch. J., and Allen, J., in result.