Hall v. Edmunds — 67 How. Pr. 202

Majority

p. 202

SUPREME COURT.

Cordelia Hall, as administratrix, agt. William E. Edmunds, as administrator.

Headnote

Costs and disbursements against executors amd administrators on reference of claim— Code of Procedure, section 317.

The prevailing party, upon a reference of a claim against a decedent, under the unrepealed provisions of the Revised Statutes, is entitled to recover the fees of referee, witnesses and his other disbursements.

By Laws of 1877 (p. 469), all of the Code of Procedure is repealed, except certain specified sections, among which are sections 311 to 333, both inclusive, and the repealing act of 1880 (Laws of 1880, p. 375, sub. 8) provides, that the repeal by that act shall not affect the right of the prevailing party to recover the fees of referee, witnesses and his other disbursements, upon the reference of a claim against a decedent, under the unrepealed provisions of the Revised Statutes (This is adverse to Daggett agt. Mead, 11 Abb. N. C., 116 ; see, also, Miller agt. Miller, ante, 135).

Monroe Special Term, July, 1884.

Motion by plaintiff to confirm report of referee upon a claim against an estate referred under the Revised Statutes, and for judgment thereon with disbursements.

p. 203

J. E Durand, for motion.

W. E. Edmunds, opposed.

The counsel opposing the motion in objecting to the allowance of disbursements relies upon Daggett agt. Mead ( 11 Abb. N. C., 116 ), in which the judge appears to have rejected these items in a brief oral opinion. In the argument of that case the counsel (as the report shows), stated, “ that part of section 317 of the Code of Procedure allowing disbursements, whenever there is a recovery, was repealed by chapter 417, Laws 1877.” In this the counsel was mistaken, and if the' decision went upon that position an erroneous factor entered into the conclusion of the judge. Instead of section 317 having been repealed it is expressly excepted from the repeal. See Laws 1877 (p. 469), where all of the Code of Procedure is repealed except certain specified sections among which are “ sections 311 to 322 both inclusive,” and the repealing act of 1880 (Laws 1880, p. 375, sub. 8) provides that the repeal by that act shall not affect the right of the prevailing party to recover the fees of referee, witnesses and his other disbursements upon the reference of a claim against a decedent under the unrepealed provisions of the Revised Statutes.

My conclusion is adverse to Daggett agt. Mead, and I allow plaintiff to recover such disbursements.