In re Accounts of Steencken & Bolte — 58 A.D. 85

Majority

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In the Matter of the Judicial Settlement of the Accounts of William Steencken and Herman Bolte, as Executors, etc., of Christian Koch (sometimes called Cook), Deceased. Herman Bolte, as Sole Surviving Executor, etc., of Christian Koch (sometimes called Cook), Deceased, Appellant; Anna Dieckmann, Respondent.

Headnote

A reversal of an order of the Surrogate’s Court “with costs” — it does not authorize the taxation of disbursements.

Where the Appellate Division reverses an order of the Surrogate’s Court “ with costs,” without mentioning the disbursements, the surrogate has no authority or power to tax any disbusements.

Sections 3251 and 3256 of the Code of Civil Procedure apply to actions and not to orders of the Surrogate’s Court.

Appeal by the petitioner, Herman Bolte, as surviving executor, etc., of Christian Koch (sometimes called Cook), deceased, from so much of an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 8th day of October, 1900, which taxes, allows and awards a sum of money for disburse

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ments to Anna Dieckmann, and directs that that amount, in.addi tion to ten dollars costs, be paid by the appellant as sole surviving executor.

Henry If. Qoldfogle, for the appellant.

Louis Cohen, for the respondent.

On the 29th of December, 1899, an order was made by the Surrogate’s Court in this proceeding, which, on appeal to this court, was reversed, with costs. The present respondent thereupon moved to make the order of this court the order of the Surrogate’s Court, and such motion having been granted, a bill of costs and disbursements was noticed for taxation. This bill included, among other disbursements, .two items for printing — one, the case, and the other, the points on the appeal — aggregating eighty-four dollars and twenty-eight cents. The executor (the present appellant) opposed the taxation and objected to the allowance of these two items. The surrogate overruled the objection, and from the order taxing the same the executor has appealed.

We think the ordér, so far as it is appealed from, must be reversed •on the authority of Cassidy v. McFarland ( 139 N. Y. 209 ). That •case seems to he controlling on the question presented. The court there held that a taxing officer might be directed to tax disbursements, but unless such direction were given on appeal from an order such officer had no authority to determine of tax the same. Here no such direction was given. The order was reversed, “ with costs.” Nothing was said as to disbursements, and, therefore, the taxing officer — the surrogate — had no authority or power to tax any disbursements whatever. Sections 3251 and 3256 of the Code of Civil Procedure apply .to actions and not to orders of the Surrogate’s Court.

It is suggested that, inasmuch as the court has control over its own judgments and orders, if the prior order awarding costs did not permit the disbursements referred to to be taxed, then the court on this appeal should amend that order for the purpose of affirming the present order. We do not think this should be done without giving the opposing party an opportunity to be heard on

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that question. We are, however, of the opinion that leave should be given to the respondent on this appeal to apply for a resettlement of the prior order of this court to the extent of allowing him his disbursements incurred on the former appeal and directing their taxation.

So much of the order as is appealed from is, therefore, reversed, with ten dollars costs to the appellant, with leave to the respondent to apply on proper notice for a resettlement of the prior order of this court to the extent and in the manner indicated.

Yan Brunt, P. J., O’Brien, Ingraham and Hatoh, JJ., ■concurred.

Order, so far as appealed from, reversed, with ten dollars costs and disbursements to appellant, with leave to respondent to apply for resettlement of prior order as stated in opinion.