Blankman v. McQueen — 65 N.Y. Sup. Ct. 172

Majority

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In the Matter of the Estate of ALFRED G. McQUEEN, Deceased. BENJAMIN J. BLANKMAN, Respondent, v. J. McQUEEN, as Administrator, etc., Appellant.

Headnote

Costs on the reference of a disputed claim against an estate.

The proceedings in the case of a disputed claim against an estate, which is referred under the provisions of the Revised Statutes, are controlled hy the Revised Statutes, as regards the allowance of costs therein, and not by the Code of Civil Procedure.

Under the Revised Statutes the costs are represented hy the disbursements, and do not necessarily include the allowances provided for in the fee hill in actions.

Appeal by the defendant, as administrator, from so much of an order of the Supreme Court, entered in the office of the clerk of the county of New York on the 27th day of June, 1890, as awarded costs and disbursements to the plaintiff therein.

By the order in question, which was made upon the report of a referee, in proceedings under the statute, in reference to a claim against the estate of Alfred G. McQueen by an alleged creditor thereof, it was ordered “ that the said report of the referee herein be, and the same is in all things, confirmed, and that judgment be entered for the plaintiff herein for the amount found due him, and that plaintiff recover his taxable costs and disbursements in the proceedings before said referee.”

Allen McDonald, for the appellant.

D. G. jynggs, for the respondent.

In the cases of disputed claims against an estate, which are referred under the statutes, it was held in the case of Denise v. Denise ( 110 N. Y., 568 ) that these proceedings were governed by the Revised 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 Revised Statutes, and not costs as mentioned in the Code. Costs under the Revised Statutes were the disbursements, and not necessarily the allowances provided for in the fee bill in respect to actions. The order appealed from seems to

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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 ) and Hauxhurst v. Ritch (119 id., 621 ) 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.

Brady and Daniels, JJ., concurred.

Order modified as directed in opinion, and, as modified, affirmed.