Claim of Bertholf v. Carr — 3 Silv. Sup. 281

Majority

p. 281

In the Matter of the Claim of Sarah Bertholf, Appellant, v. Alfred Carr, Executor, etc., Respondent.

Supreme Court, First Department, General Term,

July 9, 1889.

Headnote

Costs. Disputed claim.—On a reference of a disputed claim, § 3246 of the Code withholds from a successful claimant the right to disbursements, but makes them discretionary.

Appeal from an order denying claimant’s motion to be allowed the fees of the referee, witnesses and other necessary disbursements.

John Townshend, for appellant.

A. B. Carrington, for respondent.

The claim of the appellant against the respondent, as executor, was referred to a referee, under the statute. The claimant recovered a Judgment. She concedes, on this appeal, that she was not entitled to costs, but insists that she should have been allowed the fees of the referee and witnesses and other necessary - disbursements. The question thus raised has been passed upon adversely to the contention of the appellant by the general term of the

p. 282

third department, which held in the case of Miller v. Miller (32 Hnn, 481) that section 3246 of the Code of Civil Procedure is a substitute for section 317 of the old Code, and withholds from the successful claimant the right to disbursements which he had under the latter section.

There was no error in the action of the court below, and the order there made should be affirmed.