Kuhn v. Herrlich — 47 A.D. 33

Majority

p. 33

In the Matter of the Estate of Rosa Raab, Deceased. Carrie Kuhn, Respondent, v. Charles Herrlich, as Executor of the Last Will and Testament of Rosa Raab, Deceased, Appellant.

Headnote

Oosts against an executor on a reference of a disputed claim — acertificate isnecessa/ry — when -not granted.

A referee appointed to hear and determine a disputed claim against an estate has no power to award costs against the executor unless he certifies that pay- - ment of the claim was unreasonably resisted or neglected.

Semble, that where the claimant, who seeks to recover for personal services rendered to the testatrix, apparently made no request for payment during the latter’s lifetime, and the amount of the claim is reduced by the referee from $1,300 to $992.50, it is improper for the referee to grant, such a certificate.

Appeal by Charles Herrlich, as executor, ete., of Rosa Raab, deceased, from a judgment of the Supreme Court in. favor of

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Carrie Kuhn, entered in the office of the clerk of the county of Hew York -on the 1st day of June,.' 1899, upon the report of a referee appointed to pass upon a disputed claim filed by her against the estate of Rosa Raab.

George M. S. Schulz, for the appellant.

Thomas E. Murray, for the respondent.

This was a proceeding under section 2718 of the Code of Civil' Procedure, brought by Carrie Kuhn to recover for personal services-rendered to Rosa Raab, deceased, Mrs. Raab’s executor rejected the claim, and thereupon it was referred — by agreement and order — to a referee to hear and determine.

We have gone over the evidence adduced before the referee, and we think it justified him in finding, as he did, that the services specified in the claim were rendered, and that they were so rendered with the expectation, and upon the understanding, that Mrs. Raabwould compensate Mrs. Kuhn therefor. The circumstances under which the services were rendered were such as to warrant the implication of a promise to pay the claimant their reasonable value. The • questions upon this head, both of fact and law, were carefully considered by the referee, and we see nothing in his opinion upon the merits which calls for criticism.

We think, however, that his certificate allowing costs against théexecutor was unwarranted. ' Costs can be allowed against an executor, in such a proceeding as this, only when the referee certifies-that the payment of the claim was unreasonably resisted or neglected. (Code Civ. Proc. §§ 2718, 1835, 1836; Whitcomb v. Whitcomb, 92 Hun, 443 , citing Matson v. Abbey, 141 N. Y. 179 .) Ho-such certificate was given here. Hor could the referee have properly so certified, for the claim—when and as presented to the-executor — was certainly a doubtful one. Mrs. Kuhn apparently-made no request for. payment during Mrs. Raab’s lifetime, and her-original demand upon the executor was materially reduced, namely,, from $1,300 to $992.50. (Anderson v. McCann, 14 App. Div. 365 ; Ryan v. McElroy, 15 id. 216.) It is conceded that the disbursements were properly allowed.

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The judgment should accordingly he modified by striking out the allowance, of costs, and as modified affirmed, without costs of this appeal. ' '

Van Bbunt, P. J., Rumsey, O’Bbien and Ingbaham, JJ., concurred.

Judgement modified by striking out the allowance of costs, and as modified affirmed, without costs of appeal.

Cases cited

Matson v. Abbey 141 N. Y. 179 N.Y. 1894-01-30 p. 34