In re Matthewson's Estate — 3 N.Y.S. 660

Majority

p. 660

In re Matthewson’s Estate.

(Surrogate's Court, New York County.

November 21,1888.)

Headnote

Costs—In Surrogate's Court—Per Diem Allowance—Sale of Land.

Code Civil Proc. N. Y. § 2793, subd. 4, provides that out of the moneys arising on a mortgage, etc., must be paid the costs of the special proceeding awarded to petitioner. Section 2501 provides that in a case other than where a question of fact has been tried by a jury the surrogate may make an additional allowance as costs, where a trial on the merits occupies more than two days, of §10 for each additional day. Section 2563 provides that the executor, administrator, or freeholder disposing of the property of a decedent shall be allowed §5 for each day so occupied. Section 2765 provides that a decree for the sale, etc., of land must direct it to be made by the executor or administrator, or, in case of his failure, by a freeholder. Held, that a creditor petitioning for the sale of a decedent’s land is not entitled to a per diem allowance where there is no contest.

Application by David King, committee of the estate of William H. King, an insane creditor of John Matthewson, deceased, for a sale of the land of

p. 661

decedent to pay his debt. Code Civil Eroc. § 2560, provides that “where a question of fact has been tried by a jury, the costs awarded against the unsuccessful party are the same as the taxable costs of an action in the supreme court.”

Olin, Rives & Montgomery, for petitioner.

In this matter I am of opinion that the petitioning creditor is not entitled to a per diem allowance. Subdivision 4, § 2793, Code Civil Eroc., provides that out of the remainder of the moneys arising upon a mortgage, lease, or sale, must be paid the costs of the special proceeding awarded to the petitioner in the decree. It is clear that the intention and effect of this subdivision is to give costs to the petitioner in the proceeding, whoever he may be, whether executor, administrator, or creditor. By section 2561, the surrogate, in his discretion, in a case other than one of those specified in section 2560, may, upon rendering a decree, fix such a sum, to be allowed as costs, in addition to the disbursements, as he deems reasonable, not exceeding, where there has not been a contest, $25, or where there has been a contest, $75, and in addition thereto, where a trial or hearing upon the merits before the surrogate necessarily occupies more than two days, $10 for each additional day. Section 2563 provides that tiie executor, administrator, or freeholder disposing of the property must be allowed * * * not exceeding $5 for each day actually and necessarily occupied by him in disposing of the property, and such a further sum, etc., for the necessary services of his attorney and counsel therein, as the surrogate thinks reasonable. It will be seen that there is no provision in the last-mentioned section for an allowance to any one, not even to those named therein, except for actual services rendered in disposing of the property; whereas, subdivision 4, § 2793, expressly contemplates the payment of the costs of the special proceeding. If there can be any doubts as to who is meant by section 2563, whether it only includes an executor, administrator, and freeholder, or might, under some circumstances, be held to also include the petitioner in the special proceeding in which the sale of decedent’s real property is made, such doubt will be dispelled by reading section 2765, which provides that “a decree directing that real property be mortgaged, leased, or sold,” etc., “must direct that a mortgage, lease, or sale * * * be made by the executor or administrator, * * * or, in case of his failure so to do, by a freeholder, ” etc. It is evident, on reading sections 2563 and 2565-together, that the one directs by whom the sale shall be made, and the other prescribes the amount to be allowed him for making such sale, which can only be made by the executor, administrator, or freeholder, and in no case by the petitioner. The petitioning creditor is therefore governed by section 2561 for the amount of his costs. There being no contest in this proceeding, he is allowed $25. The disbursements claimed are not all taxable. The item of $1 for affidavits and postage is allowed. The freeholder is allowed $75 for his services, and $29.68, his disbursements.