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Outhouse v. Odell

32 N.Y.S. 388 Court N.Y. Gen. Term Decision date 1895-02-11 English

Delivered by PRATT, J.

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p. 388
OUTHOUSE v. ODELL.
(Supreme Court, General Term, Second Department.
February 11, 1895.)

Headnote

Executors—Reference of Claims—Disbursements.
Laws 1893, c. 686, amending Code Civ. Proc. § 2718; provides that, on the entry of an order of reference of a claim against decedent’s estate, the proceeding becomes an action, and is governed, as to costs, by Code Civ. Proc. §§ 1835, 1836, which provide for costs in actions against executors, etc., but make no provision for disbursements. Held, that Code Pr.oc. § 317, not being inconsistent with Code Civ. Proc. §§ 1835, 1836, is not repealed by the act of 1893, and therefore, where a claim against a decedent’s estate has been referred, disbursements may be allowed to the claimant, though no costs are given.
Appeal from special term, Orange county.
Claim by Sylvester Outhouse against Angeline Odell, as executrix of Rachel Tompkins, deceased, for $30,000, which was referred under the statute. The referee found in favor of claimant for $630, but without costs. Claimant then presented to the clerk a bill for disbursements, amounting to $255.74. Objection was made thereto by the attorney for the executrix. The clerk overruled the objection, and taxed the disbursements at the sum of $255.74. Defendant appealed from the taxation to the special term, where it was affirmed. From the decision of affirmance, defendant appeals.
Affirmed.
Argued before DYKMAJST and PRATT, JJ.
W. H. H. Ely, for appellant.
Smith Lent, for respondent.

It is clear from an examination of the case of Larkins v. Maxon, 103 N. Y. 680 , 9 N. E. 56 , that the provisions of the old Code (section 317) were not repealed by Laws 1880, c. 245; Code Civ. Proc. At the time this decision was rendered, sections 1835 and 1836 of the Code of Civil Procedure were in force, and now are in force, and section 317 of the old Code is in force, unless repealed by chapter 686 of Laws of 1893.[1] The chapter last mentioned provides that, on the entry of the order of reference, the proceeding shall become an action in the supreme court, and that the reference shall be governed on the question of costs by sections 1835 and 1836 of Code of Civil Procedure. We therefore see that sections 1835 and 1836 of Code of Civil Procedure are not inconsistent with section 317 of the old Code, and that disbursements can be allowed where no costs are given by the decision. A distinction between costs and disbursements seems to have been maintained ever since the passage of section 317 of the old Code. The Laws of 1893 (chapter 686) make no reference to disbursements whatever; therefore there has been no change in the law in regard to disbursements since the decision in Larkins v. Maxon, supra. The Laws of 1893, before referred to, besides making the proceeding an action in the supreme court, provided that the referee, in allowing or withholding costs, should be governed by sections 1835 and 1836 of the present Code; and, as we

1 The provision referred to amends Code Civ. Proc. § 2718.

p. 389
have already seen, those sections make no reference to disbursements, and, notwithstanding those provisions, disbursements can be allowed. A remarkable construction is that the legislature, by passing chapter 686 of Laws of 1893, only intended to substitute a reference under the Revised Statutes for one under the Code, as they made no mention of disbursements in that statute. By not repealing section 317 of the old Code, and making no allusions to the subject, I think it a fair inference that the legislature intended to make no change in the existing law on that subject. With some hesitation, we feel constrained to affirm the order, with $10 costs and disbursements.

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