In re Perry — 115 N.Y.S. 744

Majority

p. 744

In re PERRY.

(Supreme Court, Appellate Division, Second Department.

March 12, 1909.)

Headnote

1. Costs (§ 251^[1] )—On Appeal—“Costs.”

In analogy to the provision of Code Civ. Proc. § 3256, entitling one to whom costs are awarded to include in his bill of costs his necessary disbursements, an award of “costs” on appeal from a surrogate’s decree included disbursements; a judgment, “with costs,” always including disbursements, except on appeals from orders.

[Ed. Note.—Eor other eases, see Costs, Cent. Dig. § 959; Dec. Dig. § 251*

For other definitions, see Words and Phrases, vol. 2, pp. 1633-1640; vol. 8, p. 7620.].

p. 745

2. Exeoutobs and Administrators (§ 511*)—Accounting—Appeal—Costs— Payment Out of Estate.

A decree modifying a decree of the Surrogate’s Court settling the account of an executrix, with costs to the appellant, did not contemplate payment of the costs out of the estate, not having expressly so provided.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 2257; Dec. Dig. § 511.*]

In the matter of judicial settlement of the account of Arline A. Perry, as executrix of Anne Marchant Stacy,- deceased. On motion to amend the judgment of the Appellate Division modifying a decree of the Surrogate’s Court settling the account of the executrix. Motion denied.

See, also, 114 N. Y. Supp. 246 .

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

Arnold Davidson, for the motion.

Charles W. Church, Jr., opposed.

It is not necessary to amend our .judgment of modification of the decree of the surrogate by adding the words “and disbursements” to the words “with costs.” The latter phrase includes disbursements except in appeals from orders; following by analogy in the case of surrogates’ decrees or judgments the express provision of section 3256 of the Code of Civil Procedure in respect of .other courts, viz., that “a party to whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements.” There is no foundation for the suggestion that under our order the costs are to be paid out of the estate. If we meant that we would have said it. To grant this motion would be to introduce a bad precedent.

The motion is denied without costs. All concur.