In re the Judicial Settlement of the Account of Perry

Majority

p. 284

In the Matter of the Judicial Settlement of the Account of Arline A. Perry, as Executrix, etc., of Anne Marchant Stacy, Deceased.

Second Department,

March 12, 1909.

Headnote

Costs—when right to disbursements follows — executors and administrators — when costs not payable from estate.

When the-Appellate Division modifies a surrogate’s decree “with costs,” the award includes necessary “ disbursements,” although it does not so state. An award of costs includes disbursements, except on appeals from orders. Costs are not payable out of an estate unless so stated in the award.

Motion to amend a judgment of modification by this court of a decree of the Kings County Surrogate’s Court settling the account of an executrix. (See 129 App. Div. 587 .)

Arnold Davidson, for the motion.

Charles W. Church, Jr., opposed.

It is not necessary to amend our judgment of riiodification of the decree of the Surrogate by adding the words “ and disbursements ” to the words “ with costs ”. The latter phrase includes disbursements except in appeals from orders; following by analogy in the case of Surrogate’s decrees or judgments the express provision of section "3256 of the Code of Civil Procedure in respect of other courts, viz., that “ a party to whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements There is no foundation for the suggestion that under our order the costs are to be paid out of the estate. If we meant that we would have said it. To grant this motion would be to introduce a bad precedent. ■ . The motion is denied, without costs.

Woodward, Jenks, Burr and Rich, JJ., concurred.

Motion denied, without costs.