Claim of Bertholf v. Carr — 24 N.Y. St. Rep. 805

Majority

p. 805

In the Matter of the Claim of Sarah Bertholf, App’lt, v. Alfred Carr, Ex’r, etc., Resp’t.

(Supreme Court, General Term, First Department,

Filed July 9, 1889.)

Headnote

Costs—Successful claimant not entitled to disbursements as a matter OF RIGHT ON A REFERENCE OF A DISPUTED CLAIM.

Where a disputed claim, against the estate -of a deceased pers-m is referred under the statute, and the claimant recovers a judgment in his favor, he is not entitled, as a matter of right, to the disbursements necessarily made by him, but they, as well as the costs, are to be awarded or withheld by the court in its discretion. Miller v. Miller, 83 Hun, 481 , followed.

Appeal from special term order denying claimant’s motion to be allowed the fees of the referee, witnesses and other necessary disbursements.

John Townshend, for app’lt; A. B. Carrington, for resp’t.

The claim of the appellant against the respondent, as executor, was referred to a referee, under the statute. The claimant recovered a judgment. She concedes, on this appeal, that she was not entitled to costs, but insists that she should have been allowed the fees of the referee and witnesses and other necessary disbursements. The question thus raised has been passed upon adversely to the contention of the appellant by the general term of the third department, which held in the case of Miller v. Miller ( 32 Hun, 481 ) that section 3246 of the Code of Civil Procedure is a substitute for section 317 of the old Code, and withholds from the successful claimant the right tó disbursements which he had under the latter section.

There was no error in the action of the court below, and the order there made should be affirmed.