Headnote
Lunatics — Costs in proceedings to set aside commission.I think the rule laid down by the chancellor in Matter of Conklin, a lunatic, 8 Paige, 450, should be applied in this case.
The court, as a matter of discretion, might have awarded taxable costs to the attorney who appeared and acted for the lunatic, and such award might have been given upon motion. Under the circumstances of this case, I am in favor ■ of reversal and a new trial, unless the plaintiff shall stipulate to reduce the damages, and judgment therefor to the sum of $173.63, as of the date of the referee’s report.
If such stipulation shall be given in twenty days, and filed with the clerk of Oneida county, then the judgment as so'reduced and modified should be affirmed, without costs to either party upon this appeal.
Merwin, J., concurs.
(dissenting). The question whether plaintiff should be allowed costs of the proceedings to set aside the commission in. lunacy was in the discretion of the court. The question was referred, and the special term confirmed the report of the referee: and allowed costs, but the general term reversed the action of the special term, and held that costs should not have been allowed. I think we should follow the decision of the general term. Moreover, I think the evidence does not sustain the findings of the referee that the plaintiff acted in good faith in commencing such proceeding.
I am, therefore, of the opinion that the judgment should be. reversed.
Ordered as stated in opinion by Hardin, P. J.