In the Matter of the final accounting of Nathaniel Niles, Adm’r.(Supreme Court, General Term, Second Department,Headnote
Subboqate’s courts—Costs.It is within the discretion of the surrogate, where there has been a contest, to allow a sum not exceeding $70 as costs and in addition thereto $10 for each day in excess of two spent on the trial besides disbursements, and where the amount allowed is within these sums his order is final and conclusive on the'question of costs.
Appeal- from order of surrogate of Kings county awarding costs to Nathaniel Niles, as administrator of Chauncey S. Stevens.
The administrator appealed from a decree of the surrogate directing him to pay certain sums to the widow and daughter of decedent, and the court of appeals sent the case back for further proceedings in conformity with certain principles set forth in its opinion and awarded him costs in all courts to be paid from the estate. He applied to the surrogate to be allowed $3,941.26 as costs and disbursements, including $70 on contest; $1,090 for 109 additional days on the trial and $970 for ninety-seven days occupied by his attorney in preparing the accounts and for trial
Upon this application the appellants objected to the allowance by the surrogate of any greater sum than seventy dollars as costs besides actual disbursements, and requested, in case the surrogate held that additional costs should be allowed, the privilege of an oral examination of Mr. Niles or his attorney for the purpose of ascertaining the correctness of his bill of costs for time spent in preparing the accounts, and on the trial, and also as to the disbursements. The request was denied, the objections overruled and the bill allowed as presented.
Charles Lyons, Jr., for app’lts ; Joseph N. Tuttle, for resp’t.
It was clearly within the discretion of the surrogate to fix such a sum to be allowed as costs in addition to disbursements as he deemed reasonable, not exceeding $70, where there has been a contest, and in addition he may allow the sum of $10 for each day in excess of two spent upon the trial.
It cannot be said that there has been an abuse of discretion when the amount • allowed is within the statute, as it is in this matter.
We think, however, under the circumstances disclosed in this case, an allowance of the $70 as costs, in addition to disbursements, would have amply answered the demands of justice. Not only would that sum have been a sufficient allowance, but it would have complied with the decision of the court of appeals in this matter.
We cannot, however, review an order clearly within the dis