
    In re KINN.
    (Supreme Court, Appellate Division, Second Department.
    July 29, 1910.)
    1. Appeal and Error (§ 1207)—Order op Affirmance—Provision for Costs.
    Though there be several respondents appearing separately, an order of affirmance "with costs” allows only one bill of costs on appeal.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4008; Dec. Dig. § 1207.*]
    2. Appeal and Error (§ 1207*)—Remittitur—Proceedings Below.
    The Surrogate’s Court, in entering an order on a remittitur from the Supreme Court allowing only one bill of costs, can allow no greater number.
    [Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1207.*]
    3. Appeal and Error (§ 1207*)—Remittitur—Proceedings Below—Costs.
    Where the Supreme Court affirmed an order “with costs,” the order of the Surrogate’s Court on the remittitur should provide that the costs of appeal be paid to the respondents jointly; application to the Supreme Court to make its order more specific being the remedy if a respondent claims such costs should be paid to him alone, or if dispute as to division thereof arises.
    [Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1207.*]
    Appeal from Surrogate’s Court, Kings County.
    In the matter of the application of Peter Kinn, as executor of Anna Kinn, deceased, for leave to sell real estate to pay debts. From the orders as to costs, William Auer appeals.
    Reversed, and proceedings remitted.
    See, also, 136 App. Div. 852, 122 N. Y. Supp. 26.
    Argued before HIRSCHBERG, P. J., and WOODWARD, BURR, THOMAS, and RICH, JJ.
    A. P. Bachman, for appellant.
    Hirsh & Rasquin (Emanuel Newman and Alfred C. B. McNevin, on the brief), for respondents Schreiner and others.
    Joseph A. Kennedy, special guardian in person.
    Thomas F. Murtha, for respondent Kinn.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   BURR, J.

Peter Kinn, as executor of the last will and testament of • Anna Kinn, applied to the Surrogate’s Court of Kings County for authority to sell the real property of his testator for the purpose of paying her debts. Upon the return of the citation, several of her creditors appeared in support of the application. It was resisted by William Auer, who had purchased said real property from the devisee thereof within three years after the issuing of letters testamentary. Prom the decree of the Surrogate’s Court granting such application, Auer appealed to this court. Upon the argument of the appeal briefs were filed, not only in behalf of the executor-respondent, but in behalf of two of the creditors. The order of this court, entered upon its decision, contained these words:

‘•It is hereby ordered and adjudged that the decree of the Surrogate’s Court of Kings County so appealed from be and the same is hereby affirmed, with costs."

Thereafter an order was entered in the Surrogate’s Court, making such order of affirmance the order of that court. Separate bills of costs upon appeal had been previously taxed in favor of the respondent-executor, in favor of the respondent-creditors, and in favor of the special guardian of an incompetent heir at law who did not appear in the appellate court at all. The amount of these costs was inserted in the order, with a direction that they be paid by the appellant personally to the parties who had taxed the same. The order seems to have been entered without notice. A motion was made to resettle the same by striking out the direction for separate costs, and providing for only one bill of costs, to be paid by the appellant, and directing a retaxation accordingly. This appeal is taken from the order denying such motion, and also from so much of the previous order as awarded separate costs.

In a case of this character, costs on appeal are in the discretion of the court. Code Civ. Proc. §§ 3238, 3239, 3240; Lawrence v. Lindsey, 70 N. Y. 566. When the order of an appellate court affirms the order of the court below “with costs,” although there may be several respondents appearing separately, such order has been construed as allowing only one bill of costs on appeal. Van Gelder v. Van Gelder, 84 N. Y. 658; Sweet v. City of Syracuse, 66 Hun, 629, 20 N. Y. Supp. 924. Although the question of the allowance of more than one bill of costs to parties separately appearing in the Surrogate’s Court is in the first instance committed to that court, in entering an order upon a remittitur from this court which allows only one bill of costs no power exists in the Surrogate’s Court to allow a greater number. Isola v. Weber, 12 App. Div. 267, 42 N. Y. Supp. 615; Matter of N. Y., West Shore & B. R. Co., 28 Hun, 505. The order of tire Surrogate’s Court should provide that the costs of the appeal be paid to the respondents jointly. If the executor thinks that such costs should be paid to him alone, or if any embarrassment arises as to the division of the costs, application should be made to this court to make its order more specific in this respect.

The order of the Surrogate’s Court of Kings County dated April 27, 1910, refusing to resettle the order of April 11, 1910, and so much of the order of April 11, 1910, as is appealed from, should be reversed, with $10 costs and disbursements, and the proceedings should be remitted to the said Surrogate’s Court to proceed in accordance herewith. All concur.  