
    Ellen Anderson, Respondent, v. Thomas H. McCann, as Executor, etc., of Margaret Haggerty, Deceased, Appellant.
    
      Reference under the statute — when a claim has not leen unreasonably resisted—
    
      costs.
    
    A claim for §615 against a decedent’s estate, which has been reduced to §821, cannot be said to have been unreasonably resisted by the executor, and he should not be charged with the costs of a statutory reference in respect thereto.
    Appeal by the defendant, Thomas H. McCann, as executor, etc., of Margaret Haggerty, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 18th day of June, 1896, upon an order made at the Hew York Special Term bearing date-the 18th day of June, 1896, and entered in said clerk’s office, confirming the report of a referee, upon a statutory reference of a claim against the estate of defendant’s testator, and also from an order entered in said clerk’s office on the 15th day of June, 1896, allowing costs and disbursements, to the plaintiff.
    
      Michael T. ¡Sha/rkey, for the appellant.
    
      William O.. Arnold, for the respondent.
   Rumsey, J.:

The claim was made for services rendered to Mrs. Haggerty during her lifetime. Two kinds of services were, claimed to have been Tendered. The first was housework done for the testatrix between the 1st of June, 1892, and the 1st of January, 1895, for which the referee allowed the plaintiff $195. The next was- for nursing the testatrix in her last sickness, between the 1st of January, 189.5, and the 6th of March, 1895,, for which the referee allowed the plaintiff $126. Judgment was entered upon the referee’s report for the amount allowed and costs and disbursements. The case shows nothing from which the referee was justified in finding the value of the services rendered by the plaintiff to Mrs. Haggerty for housework to be $195. It is entirely silent as to the value of such services, and there is no sufficient evidence to enable the referee to fix accurately the amount of services rendered. For these reasons his finding in that regard was entirely unwarranted by the evidence and cannot be sustained.

There was perhaps evidence enough to warrant his fixing the value of the services rendered for nursing at $126, and to that extent his report may stand if the- plaintiff shall desire. But the award of costs against the defendant was entirely improper, because it is quite clear that a claim which is reduced from $615 to $321 upon the hearing, cannot be said to be unreasonably resisted. This would be so even if the referee had been correct in awarding td the plaintiff all .that he did award to her; much more is it the fact when it is made to appear, as it does, that there was no foundation for the whole of the award which he actually made.

The judgment, therefore, cannot stand in its present condition, but, as from the testimony it appears that the plaintiff may not be able upon the new trial to make any greater proof than she has already made as to the; value of the services rendered by her for housework, it may be that justice can be done in the case without the reversal of the entire judgment. To that end we shall direct that the judgment shall be reversed and a new trial ordered, with costs to the appellant to abide the event, unless the plaintiff shall stipulate that the judgment may be reduced to the sum of $126, with interest from March 6, 1895, with the referee’s fees and disbursements; and, if she shall so stipulate, then the judgment, as so modified, shall be affirmed, without costs to either party in this court.

Yan Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event, unless plaintiff stipulate that the judgment be reduced to $126, with interest from March 6, 1895, with the referee’s fees and disbursements ; and, if she so stipulate, judgment, as so modified, affirmed, without costs to either party.  