
    Hendricks v. Isaacs.
    
      (Supreme Court, General Term, First Department.
    
    March 29, 1889.)
    1. Costs—Refebence of Claim against Executoe.
    A special proceeding under Rev. St. N. Y. pt. 2, c. 6, tit. 3, art. 2, § 37, providing that on a reference by consent of a claim against an executor the proceedings shall be the same, and costs may be adjudged, as in an action, is not governed by Code Civil Proc. §§ 1835, 1836, providing that costs may be given on a judgment against an executor when, after notice to present claims, the executor unreasonably resists it, or refuses to refer it for adjustment, and that the judge or referee shall certify the facts, and therefore no certificate of the trial judge or referee is necessary to enable the court to award costs; but only the referee’s fees and other necessary disbursements can be awarded.
    2. Same—Costs of Appeal—To Abide Event.
    On appeal in such case, the general term, on reversing the decision of the court below, may award costs of appeal, to abide the event of the new trial.
    Appeal from special term, Hew York county.
    Action by Mortimer Hendricks against Montefiore Isaacs, as administrator of Justina B. Hendricks, to recover certain moneys alleged to have been advanced to defendant’s intestate on pledge of her interest in the estate of one M. M. Hendricks, deceased. The referee allowed plaintiff’s claim in part, with costs, and defendant appeals.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Wüliam Man, for appellant. Abram Kling, for respondent.
   Van Brunt, P. J.

The question of‘the right of the plaintiff to maintain this proceeding and to recover therein seems to have been disposed of in the case of Hendricks v. Isaacs, 46 Hun, 239, and also by the case of Rohrbach v. Insurance Co., 62 N. Y. 47, It is therefore not necessary to discuss those points again. The only other question which remains to be considered arises upon the appeal from the order granting costs and extra allowance to the plaintiff. The right to costs seems to be governed by the provisions of the Revised Statutes, which provide that in these proceedings the court may adjudge costs as in actions against executors. Were it not for the decision of the court of appeals in the case of Denise v. Denise, 110 N. Y. 562, 18 N. E. Rep. 368, we would be of the opinion that costs in such proceedings were regulated by the provisions of sections 1835, 1836, of the Code. But in that case it is distinctly held that, as these proceedings are special proceedings under the statute, they are not controlled by the provisions of sections 1835, 1836, and that the court may award’costs, although the conditions precedent to the right of the court to award costs in an action as required by section 1836 are absent. In order, therefore, to enable the court to award costs, no certificate of the judge or referee before whom the trial took place was necessary. It also follows that costs as in an action and costs of an action cannot be allowed by the court, and all that the court can in the first instance adjudge by way of costs is the payment of the referee’s fees and other disbursements necessarily incurred. The court, therefore, in the award of costs, should have limited itself to the award of such referee’s fees and disbursements, and had no power to grant an extra allowance.

The claim made that the plaintiff was entitled to the costs of the previous appeal because costs were awarded upon that appeal, to abide the final event, stands upon an entirely different foundation. It is for the appellate court to determine as to whether, in case of an appeal, costs should or should not be allowed against an executor or administrator. In this case the general term, in the rendition of its judgment, has awarded costs to the plaintiff, in the event of his success upon a new trial; and, having succeeded, he is clearly entitled to those costs. In the case of Denise v. Denise such an award of costs was distinctly upheld. It would appear, therefore, that the order awarding costs of the trials and extra allowance should be modified by striking therefrom all the costs of such trials, except the referee’s fees and necessary disbursements, and the order for the extra allowance, and that such order, as modified, be affirmed without- costs; and that the judgment appealed from should be modified by reducing the same by the amount of the costs and allowances taxed, other than disbursemenis, and, as modified, affirmed, with costs. All concur.  