Hyperlawhypertext legal database In re Moran's Estate 113 N.Y.S. 276

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In re Moran's Estate

113 N.Y.S. 276 Court N.Y. Sur. Ct. English

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p. 276
(60 Misc. Rep. 298.)
In re MORAN’S ESTATE.
(Surrogate’s Court, Kings County.
July, 1908.)

Headnote

Costs (§ 251*)—Costs on Appeal—Reversal.
Where a decree of distribution of a Surrogate’s Court was reversed in the Appellate Division, with costs to the appellant, the costs of the appeal only may be taxed, without disbursements.
[Ed. Note.—For other cases, see Costs, Cent. Dig. § 959; Dec. Dig. § 251.*]
In the matter of the estate of Louisa Moran.
Decree rendered in proceeding on accounting.
p. 277
Jacob I. Bergen, for administratrix.
John C. Judge, for Josephine McDermott.
John J. Haggerty, for Joseph Moran and others.
Joseph A. Kennedy and Robert F. Manning, special guardians.

Upon appeal from the decree of distribution, the Appellate Division has directed that its reversal of the decree be “with costs to the appellant.” Costs, in the order to be entered upon the remittitur, can only be awarded according to the special directions made upon the appeal (Code Civ. Proc. § 2558, subd. 1); and the direction quoted contemplates only the costs of the appeal in the appellate court. Among the haphazards of the Code it appears that, upon reversal of a surrogate’s decree, “with costs,” and without specification of disbursements, the surrogate has no power to include disbursements in his taxation of costs. Matter of Steencken, 58 App. Div. 85 , 68 N. Y. Supp. 444 . Unless, therefore, the appellant shall receive further direction, the order proposed will include only the costs for making and serving the case and the costs before and after argument.

Decreed accordingly.

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