Blankman v. McQueen — 33 N.Y. St. Rep. 807

Majority

p. 807

In the Matter of the Estate of McQueen. Benjamin J. Blankman, Resp’t, v. John McQueen, Adm’r, App’lt.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

Executors and administrators—Reference of disputed claim—Costs. Where a claimant is entitled to costs on a reference of a disputed claim, such costs are those referred to in the Revised Statutes and not those mentioned in the Code.

Appeal from order awarding costs and disbursements to claimants herein.

Allen McDonald, for app’lt; D. 0. Briggs, for resp’t

In the cases of disputed claims against, an estate which are referred under the statute, it was held in the case of Denise v. Denise, 110 N. Y., 568 ; 18 N. Y. State Rep., 873, that these proceedings were governed by the Bevised Statutes, and their provisions controlled the question of costs. Therefore where a claimant is entitled to costs in these proceedings it is the costs referred to in the Bevised Statutes and not costs as mentioned in the Code. Costs under the Bevised Statutes were the disbursements, and not necessarily the allowances provided for in the fee bill.in respect to actions.

p. 808

The order appealed from seems to contemplate the allowance of costs as taxable under the Code. This was error and the order should be modified in this respect.

The cases of Hopkins v. Lott, 111 N.Y., 579 ; 20 N.Y. State Rep., 130; and Hauxhurst v. Ritch, 119 N. Y., 621 ; 28 N. Y. State Rep., 675, in no respect modify Denise v. Denise.

The order appealed from should be modified by striking therefrom the-words “taxable costs,” and as modified affirmed.

Daniels and Brady, JJ., concur.