Darde v. Conklin — 73 A.D. 590

Majority

p. 590

Louisa F. Darde, Respondent, v. Tillie Conklin and Harry Gravelius, as Executors, etc., of Mary Gravelius, Deceased, Appellants.

Headnote

Costs—against an executor on a reference of a disputed claim — a certificate under Code of Civil Procedure, § 1836, is necessary.

Upon the reference of a disputed claim against the estate of a decedent costs cannot be allowed against the executor or administrator, even though the claimant’s recovery exceeds fifty dollars, in the absence of a certificate by the referee under section 1836 of the Code of Civil Procedure that payment of the claim was unreasonably resisted or neglected.

Appeal by the defendants, Tillie Conklin and another, as executors, etc., of Mary Gravelius, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 1st day of April, 1901, upon the report of a referee. '

Edwin F. Stern, for the appellants.

A. T. Payne, for the respondent.

In this action the plaintiff has recovered from the defendants the sum of $198 for board and nursing furnished to the testatrix of the defendants, and also the sum of $144.90 for costs and disbursements.

The evidence is sufficient to sustain the principal recovery. The plaintiff is the sister-in-law of the decedent, and the ajipellants cite the ease of Van Kuren v. Saxton ( 3 Hun, 547 ) as authority for the proposition that a contract to pay for services or board will not be implied where the parties are thus related. In that case, however, no intimation was given by either party that pecuniary compensation should be made by one to the other. Here the facts are different. There is abundant proof of an express promise on the part of the decedent to pay for her board and to recompense the plaintiff for her services as a nurse.

But the recovery for costs cannot be upheld. There was no certificate by the referee to the effect that the claim was unreasonably

p. 591

resisted or neglected, such as is required by section 1836 of the Code of Civil Procedure as a condition precedent to the award of costs in such a case as this.

The judgment must, therefore,, be modified by deducting therefrom the amount inserted therein on account of costs, and as thus modified affirmed. The appellants should have costs of this appeal, inasmuch as it was necessary for them to come to this court in order to secure the correction to which they were entitled in respect to the insertion of costs in the judgment.

All concurred.

Judgment modified by deducting therefrom the amount inserted therein on account of costs, and as thus modified affirmed, with costs to the appellants.