Walker v. Gardener

This is a motion for the confirmation of the referee’s report in each of the foregoing entitled actions, in favor of

It is submitted, on the part of the executor, that, because he has defeated the claim which was referred under the statute, he .is entitled to costs, under section 3229 of the Code of Civil Procedure, as of course. This is a special proceeding,—a reference, under the statute, of a disputed claim, rejected and referred. Hallock v. Bacon, 16 N. Y. Supp. 725 ; Id., 64 Hun, 90 , 19 N. Y. Supp. 91 ; Hendricks v. Isaacs, 52 Hun, 100 , 5 N. Y. Supp. 105 , reversed (on other grounds) 117 N. Y. 411 , 22 N. E. 1029 ; Denise v. Denise, 110 N. Y. 568 , 18 N. E. 368 . Many cases have been cited in the briefs of counsel for the respective parties where the contest was determined in favor of the claimant; and in each case it has been held that unless the claim was unreasonably resisted, or payment thereof neglected, and a certificate to that effect was made by the court or the referee, the only recovery which could be had was for ref- . eree’s fees, and disbursements in favor of the party so prevailing. No cases have been cited by either counsel, so far as I have been able to examine the cases cited, in which the executor succeeded in entirely defeating the claim of the claimant, yet in each of the cases cited the court practically held that costs were not recoverable, as under the Code of Civil Procedure, but could only be recovered under the provisions of the Revised Statutes, or in harmony with section 317 of the Code of Procedure, as that section formerly existed before the adoption of the Code of Civil Procedure. Miller v. Miller, 32 Hun, 481 ; Agar v. Tibbets, 56 Hun, 274 , 9 N. Y. Supp. 591 ; In re McQueen, 58 Hun, 172 , 11 N. Y. Supp. 509 ; Hallock v. Bacon, 64 Hun, 90 , 19 N. Y. Supp. 91 . In the Hallock Case, Hardin, P. J., wrote an elaborate opinion, collecting and reviewing all of the cases decided up to the April term, 1892. Of the same character are the cases of Hopkins v. Lott, 111 N. Y. 577 , 19 N. E. 273 ; Hauxhurst v. Ritch, 119 N. Y. 621 , 23 N. E. 176 . In each of these cases it was distinctly held that costs cannot be awarded against an executor or administrator, except under the Revised Statutes, unless the certificate required by section 1836 of the Code of Civil Procedure has been made; so that all of those cases may be taken as authorities, direct, that no other provision for costs is made upon a reference under the Revised Statutes when the plaintiff succeeds in establishing his claim. Some of the earlier authorities hold that section 317 of the Code of Procedure, and the repealing act of 1880, destroy the right to costs and disbursements under the statute in references of this character; but that doctrine seems to have been overruled, and established to the contrary. Larkins v. Maxon, 103 N. Y. 680 , 9 N. E. 56 , in which case Krill v. Brownell, 40 Hun, 72 ; Sutton v. Newton, 15 Abb. N. C. 452 ; Overheiser v. Morehouse, 16 Abb. N. C. 208 ; Hall v. Edmunds, 67 How. Pr. 202 ,—are cited and approved. Were no other cases re

“(1) Where the administrators successfully resist a claim against the estate they are not entitled to an additional allowance or percentage. They are not entitled to costs as in an action given by the Code; they are entitled only to disbursements.”

“(c) The prevailing party is entitled to recover his necessary disbursements upon a reference, under the statute, of a claim against the estate of a deceased person.”

The case of Van Sickler v. Graham, 7 How. Pr. 208 , and many ■ other cases, are cited as holding these ’propositions.

I am not asked to exercise a discretionary power to award costs, but they are claimed as matter of law. See Babbage v. Webster, 72 Hun, 456 , 25 N. Y. Supp. 300 , which seems not to be in harmony with the line of cases heretofore cited.

The report of the referee in each of these proceedings is therefore confirmed, with $10 costs of the motion in each case, together with the referee’s fees and disbursements in each case, to be taxed by -.the clerk of Cortland county; and orders may be prepared accord

The case of Agar v. Tibbets, 56 Hun, 272 , 9 N. Y. Supp. 591 , is not applicable to the facts in this case. There costs were asked as a favor, to discontinue the action. The application in that case was addressed to the discretionary power of the court.

Ordered accordingly.