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Outhouse v. Odell

65 N.Y. St. Rep. 593 Court N.Y. Gen. Term Decision date 1895-02-11 English

Delivered by Pratt, J.

Contents

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p. 593
Sylvester Outhouse, Resp’t, v. Angeline Odell, as Executrix, etc., App’lt.
(Supreme Court, General Term, Second Department,
Filed February 11, 1895.)

Headnote

Costs—Disbursements—Executors.
Where a claim against a decedent’s estate has been referred, disbursements may be allowed to the claimant, though no costs are given. .
Appeal from an order, affirming taxation of costs.
W. H. H. Ely, for app’lt; Smith Lent, for resp’t.

It is clear from an examination of the case of Larkins v. Maxon, 103 N. Y. 680 ; 3 St. Rep. 642 , that the provisions of the old Code (§ 317) were not repealed by Laws 1880, c. 245; Code Civ. Proc. At the time this decision was rendered, §§ 1835 and 1836 of the Code of Civil Procedure were in force, and now are in force, and § 317 of the old Code is in force, unless repealed by chapter 686 of Laws of 1893. The chapter last mentioned provides that, on the entry of the order of reference, the proceeding shall become an action in the supreme .court, and that the reference shall be governed on the question of costs by §§ 1835 and 1836 of Code of Civil Procedure. We therefore see that §§ 1835 and 1836 of Code of Ciyil Procedure are not inconsistent with § 317 of the old Code, and that disbursements can be allowed where no costs are given by the decision/ A distinction between costs and disbursements seems to have been maintained ever since the passage of § 317 of the old Code. The Laws of 1893 (chapter 686) make no reference to disbursements whatever; therefore there has been no change in the law in regard to disbursements since the decision in Larkins v., Maxon, supra. The Laws of 1893, before referred to, besides making the proceeding an action in the supreme court, provided that the referee, in allowing or withholding costs, should be governed bv §§ 1835 and 1836 of the present

p. 594
Code; and, as we have already seen, those sections make no reference to disbursements, and, notwithstanding those provisions, disbursements can be allowed. A remarkable construction is that the legislature, by passing chapter 686 of Laws of 1893, only intended to substitute a reference under the Revised Statutes for one under the Code, as they made ho mention of disbursements in that statute. By not repealing section 317 of the old Code, and making no allusions to the subject, I think it a fair inference that the legislature intended to make no change in the existing law on that subject. With some hesitation, we feel constrained to affirm the order with $10 costs and disbursements.

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