
    In the Matter of Proving the Last Will, etc., of Henry H. Byron, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    "Will—Costs—Stenographer’s minutes—Code Civ. Pro., § 2558, sued. 8.
    The true construction of § 2558 of the Code requires that the order should precede the furnishing of the stenographer’s minutes, and where the contestants procure copies of such minutes without an order, for use on an appeal in which they are unsuccessful, the surrogate has no power to direct the payment to them of the cost thereof.
    Appeal from a portion of an order made by the surrogate’s -court of Erie county, dated October 24, 1890, directing the appellants to pay out of the funds of the estate to the contestants, the special guardian of Maude Kirby, an infant, and Bobert Byron, the sum of $456.80 expended for a copy of the stenographer’s minutes of the evidence upon the trial of the proceedings for the probate of the will of Henry H. Byron, deceased.
    
      Hosea S. Heath, for app’lts ; J. M. Humphrey, for resp’ts.
   Lewis, J.

There was a contest in the surrogate’s court of Erie -county over the probate of the will of Henry H. Byron, deceased. A decree was entered on the 10th day of September, 1890, admitting the will to probate. It was directed by the decree that the question of the costs be reserved to be determined by the further •decree of the surrogate’s court A motion was thereafter made by the contestants to be allowed as disbursements the sum of $456.80 paid for a copy of the stenographer’s minutes of the evidence taken upon the trial. They presented upon the motion affidavits showing that by direction of their counsel they procured of the official stenographer of the surrogate’s court a copy of the minutes of testimony, and thatByron paid the sum named therefor. No order was obtained prior to the furnishing of the minutes, directing them to be furnished to the contestants. The proponents opposed the motion and their affidavits show that they had procured a part of the stenographer’s minutes for use upon the trial at an expense of $332.00, and had them at the time the contestants procured their copy.

This appeal is upon a question of law and not from a decree rendered upon the trial by the surrogate of an issue of fact, and the case required by § 2576 of the Code of Civil Procedure was not necessary. The practice suggested in Bedfield’s Law and Practice in Surrogates,’ Courts was followed, and we think correctly. All the papers are before us upon which the surrogate acted in making the supplementary decree appealed from.

Section 2558 of the Code of Civil Procedure provides that “The-surrogate may order a copy of the stenographer’s minutes to be furnished to the contestants’ counsel and charge the expense thereof to the estate, if he shall be satisfied that the contest is-made in good faith.”

The contestants having been unsuccessful in the litigation were not entitled to any costs. They were not entitled at the expense of the estate to reimbursement for moneys they may have paid for minutes of testimony without an order of the surrogate’s court. The court being one of limited jurisdiction, its power to grant the-order was derived from the section of the Code mentioned, and that section, it will be seen, contemplates that the application for the order shall precede the furnishing of the minutes. The proponents were entitled to notice of such application. In the Matter of the Probate of the Will of Budlong, deceased, 33 Hun, 235.

Had the application been made before the minutes were furnished, it would have been made to appear to the surrogate that, his official stenographer had already furnished a copy of most of the testimony to the proponents, for which he had charged them the sum of $332. An investigation would have undoubtedly shown that the stenographer, when he made the copy for the appellants, took a duplicate impression and had on hand an extra copy of the evidence. It would have afforded the appellants an opportunity to loan to the contestants their copy of the evidence and thereby save the expense of another copy.

This case very aptly illustrates the propriety of the provision of the Code requiring that the application for the order should precede the furnishing of the minutes. The course pursued gave to the stenographer an opportunity to secure $456.80 for an exceedingly small outlay on his part. If properly regulated, the services of a stenographer probably facilitate the business of our courts. They at least conduce to correctness, but unless a careful supervision is exercised over them by the courts their charges become, exceedingly burdensome to the litigants.

If this order is allowed to stand, there will be taken out of this-estate for the work of a mere clerk in copying the minutes of the trial §788.80. The stenographer of the surrogate’s court receives a salary for talcing the original minutes. We are not advised as to the value of this estate, but assuming it to be an average estate the stenographer's charges would make a serious inroad into the accumulations of the testator.

The moving affidavits show that Byron paid the §456.80 to the stenographer. The order provides that one-half thereof shall be paid by the executors to him, and the other half to the guardian ■of Maude Kirby. Why the guardian should receive a portion of the sum paid by Byron does not appear.

We think that the true construction of § 2558 requires that the order should precede the furnishing of the minutes and that the surrogate had no power to grant the order appealed from. That part of the supplementary decree directing the executors to pay the contestants out of the funds of the estate the amount paid .to the stenographer should be reversed, with costs.

Dwight, P. J., and Macomber, J., concur.  