Hopkins v. Lott — 6 N.Y. St. Rep. 12

Majority

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John B. Hopkins, App’lt, v. Franklin J. Lott, as Adm’r, etc., of Sarah E. Lott, deceased, Res’pt.

(Supreme Court, General Term, Second Department,

Filed December 14, 1886.)

Headnote

Refe'rence of a disputed claim against the estate of a deceased person —Special proceeding—Right to costs and disbursements on—Code Civil Pro., § 3246.

A claim against intestates estate was presented to the administrator, who rejected it and offered to refer, which was accordingly done. The referee found plaintiff entitled to six cents damages. Retd, that it was a special proceeding and that defendant was entitled to costs under Code Civil Procedure, § 3246.

Appeal from an order of the Kings county special term confirming the report of a referee and awarding defendant extra allowance and costs and disbursements.

_ Henry A. Monfort, for app’lt; Henry H. Smith, for resp’t.

This was a matter arising upon a claim by plaintiff against the estate of Sarah E. Lott, deceased, which was presented to, and rejected by the defendant, administrator, who at the same time offered to refer, and the

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claim was accordingly referred on consent of both parties, and with the approval of the surrogate.

The claim was for $1,000 damages for breach of a covenant of quiet enjoyment in a lease.

The referee reported that plaintiff was entitled to six cents damages. The referee’s fees were sixty dollars, which plaintiff refused to pay, and defendant took up the report and moved at special term for costs.

The court rendered judgment for the plaintiff for six cents damages, and in favor of the defendant for costs and disbursements.

It seems to be settled that this proceeding is not an action, but is a special proceeding. 88 N. Y., 556 ; 81 id., 305.

We think the order made below was right. The Revised Statutes, under which the reference was had, provide that the “court may adjudge costs as in actions against executors and administrators.” Then comes the provision of the Code of Civil Procedure, section 3426, as follows: “In an action brought by or against an executor or administrator in his executive capacity, costs must be awarded as in an action by or against a person prosecuting or defending in his own right.”

On the question of costs, the defendant here was the preventing party. In this special proceeding the costs are to be adjudged as in an action prosecuted or defended by a person in his own right.

The Code of Civil Procedure was intended to provide a complete system upon the subject of costs. See sections 3246, 3228, 3229, 3230 and 3256,. which seem to cover the case in hand.

The confusion seems to have arisen from the fact that the Code of Civil Procedure refers to actions when treating of costs, but when it is seen that this particular proceeding is assimilated to an action in regard to costs, there seems to be no difficulty in the question.

This view is in consonance with the general purpose of the legislature in allowing costs, which is to make the burthen of litigation fall upon the party who causelessly invokes it.

Order affirmed, without costs.

Barnard, P. J., concurs; Dykman, J., not sitting.