
    Hallock v. Bacon et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    April, 1892.)
    Rejected Claim against Estate—Reference—Costs.
    References of claims rejected by executors, had pursuant to 3 Rev. St. (7th Ed.) p. 2300, §§ 36,37, are special proceedings, and the referee’s fees and disbursements are recoverable; but, it not appearing that the claims were unreasonably neglected or resisted, costs cannot be awarded as in. actions under Code Civil Proc. § 3240, providing that “costs in a special proceeding instituted in a court of record, * * * when the costs thereof are not specially regulated in this act, may be awarded to any party, in the discretion of the court, at the rates allowed for similar services in an action brought in the same court; ” since section 3250, found in the same title, provides that “this title” does not affect any provision contained “in any other statute remaining unrepealed after this chapter takes effect, whereby the award of 'costs is specially regulated in a particular case otherwise than as prescribed in this title. ” 16 N. Y. Supp. 725, modified. .
    Appeal from judgment on report of referee.
    J. Henry Halloek presented a claim to Etta B. Bacon and Alice A. Salisbury, executrices under the will of Emma B. Sharer, deceased, which was rejected by said executrices, and a reference was had under the statute. The referee reported in favor of plaintiff, and a motion to confirm the same and for judgment thereon was thereafter granted. No certificate of Lhe referee or affidavit was filed showing that the claim was unreasonably resisted or neglected, but the .clerk retaxed the costs, allowing plaintiff, in addition to the referee’s fees and disbursements, the following items, viz.; “Before no"tice of trial, $15.00; after notice, and before trial, $15.00; trial fees, $30.00; trial occupying more than two days, $10.00.” From an order denying their motion to vacate the taxation and relaxation of costs, defendants appeal.
    Modified.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      II. E. Miller, for appellants. J. William Wilson, for respondent.
   Hardin, P. J.

References had pursuant to sections 36 and 37 of the Revised Statutes (3 Rev. St., 7th Ed., 2300) are special proceedings. In Coe v. Coe, 37 Barb. 235, in speaking óf a similar case, Allen, J., said; “It is a statutory proceeding, and the only authority for a judgment is the report of the referee, which is subject to examination by the court.” In Young v. Cuddy, 23 Hun, 249, Gilbert, J., said: “References of disputed claims against executors, pursuant to 2 Rev. St. pp. 88, 89, §§ 36, 37, are ‘special proceedings.’ Code Civil Proc. §§ 3333, 3334. The provisions of the Revised Statutes regulating such proceedings have not been repealed by the Code of Civil Procedure.” And in Roe v. Boyle, 81 N. Y. 305, it was said: “And this has been generally, if not uniformly, regarded as a special proceeding, by judges who have had occasion to consider the point; ” citing cases. In Mowry v. Peet, 88 N. Y. 456, it was said: “In trying and adjudicating upon these matters, which are within the scope of the reference, the statute (2 Rev. St. p. 88, § 36) confers upon the referee and the court the same powers as if the reference had been made in an action. But the,proceeding is not an action.” In Paddock v. Kirkham, 102 N. Y. 599, 8 N. E. Rep. 214, Roe v. Boyle and Mowry v. Feet were referred to approvingly. In Eldred v. Eames, 48 Hun, 256, (decided by this court in 1888,) it was said: “Where a reference is had under the statute, the claim and stipulation stand in the place and stead of and for the pleadings. Such a reference is a special proceeding. Bucklin v Chapin, 1 Lans. 450; Hatch v. Stewart, 42 Hun, 164.” Although that case was reversed by the court of appeals, (115 N. Y. 401, 22 N. E. Rep. 216,) it was upon another point, to wit: “The referee has no power of amendment, and may not vary the matter referred.” Since the adoption of the Code of Civil Procedure several cases have arisen which recognize the right of the plaintiff to recover referee’s fees and disbursements as a matter of course. In Krill v. Brownell, 40 Hun, 72, (decided March, 1886, fifth department,) Smith# P. J., states the legislation upon the subject quite satisfactorily, and the court in that case reaches the conclusion that the prevailing party “is entitled to recover the fees of referees and witnesses, and his other necessary disbursements, as a matter of right.” His opinion was referred to in Larkins v. Maxon, 103 N. Y. 681, 9 N. E. Rep. 56, as well as other cases to the same effect, and the court said: “We think these last-cited cases established the true construction of the subdivision referred to, and that it was intended, and did preserve the right to disbursements given by the former Code upon the reference of a claim against a decedent.” In June, 1886, the general term, fifth department, decided Denise v. Denise, 41 Hun, 9, and ordered judgment for the plaintiff “to recover referee’s fees and disbursements.” Page 13. The court of appeals affirmed the order, (110 N. Y. 562, 18 N. E. Rep. 368,) and near the close of the opinion it was observed: “The present case is that of a special proceeding under the statute, where the determination of a matter was referred by the consent of both parties, and is not controlled by section 1836.” In October, 1886, the fifth department decided Hatch v. Stewart, 42 Hun, 164, which was a case where a reference had been had under the statute, and the report had been confirmed, and the court observes that “the recovery of disbursements, as directed by the judgment, must stand. The plaintiff was entitled to them as matter of right, because the provisions of section 317 of the old Code to that effect were not repealed by Laws 1877, c. 417; and although the entire provisions of the old Code are embraced in the repealing clause of Laws 1880, c. 245, §§ 1, 2, subd. 4, the then existing right of the prevailing party to recover the fees of referees and witnesses, and other necessary disbursements, in a proceeding of this character, is preserved by section 3, subd. 8, of the same act. Hall v. Edmunds, 67 How. Pr. 202; Sutton v. Newton, 2 How. Pr. (N. S.) 56, 15 Abb. N. C. 452, 7 Civil Proc. R. 334; Overheiser v. Morehouse, 2 How. Pr. (N. S.) 257,16 Abb. N. C. 208, and 8 Civil Proc. R. 11.” In the cases in hand no affidavits or certificates of the referee were used at the special term to obtain an adjudication allowing the plaintiff costs against the executors. Rum. Pr. 484. In Pursell v. Fry, 19 Hun, 599, it was held that without such proof an allowance was improper, and that case is an authority supporting the plaintiff’s claim for referee’s fees and disbursements, and is an authority adverse to the other costs mentioned in his bill. The case was decided in this department in 1880. In June, 1883, this department in deciding Fredenburg v. Biddlecome, 17 Wkly. Dig. 25, which was a case where a reference had been had under the statute, held, “on the reference of a disputed claim, the executors are not chargeable with costs, in the absence of proof that they unreasonably resisted or neglected the claim.” In the course of the opinion, delivered by Hardin, J., it was said: “That section 3240 of the Code is not applicable, as the costs are specially regulated by the statute.” However, it is now insisted in behalf of the respondent that by section 3240 of the Code of Civil Procedure the court may allow “further costs, at the rates allowed for similar services in an action.”

In Hopkins v. Lott, 111 N. Y. 577, 19 N. E. Rep. 273, a case was before the court where a reference had been had under the statute, and a recovery of damages in the sum of six cents, and the defendant sought to charge the plaintiff with costs; and in the course of the opinion delivered in that case, Andrews, J., says: “The plaintiff was properly denied costs, because the payment of the claim was not unreasonably resisted, and it was referred by the agreement of both parties under the statute. The plaintiff’s cause of action was maintained by the judgment entered on the report of the referee, but his damages for the eviction, as determined, were nominal merely, and judgment was awarded in his favor for six cents only; but the right of the defendant to costs does not follow, because they were not awarded to the plaintiff under the special provisions of sections 1835 and 1836, * * * nor was the allowance of costs to the defendant discretionary, under section 3240 of the Code. The costs are regulated by the Revised Statutes and the Code, as in actions against executors and administrators.” In Hendricks v. Isaacs, (Sup.) 5 N. Y. Supp. 105, it seems to have been held that “all that the court can in the first instance adjudge by way of costs is the payment of the ref■cree’s fees and other disbursements necessarily incurred” in case of a reference under the statute. In Blankman v. McQueen, (Sup.) 11 N. Y. Supp. 509, it was held that the proceedings in the case of a disputed claim against an estate are controlled by the Revised Statutes as regards the allowance of costs, and not by the Code of "Civil Procedure, and that the costs are represented by tlie disbursements, and do not include allowance provided, in the fee bill in actions. The opinion delivered in that case refers to Hauxhurst v. Ritch, 119 N. Y. 621, 23 N. E. Rep. 176. The court struck out the “allowance of costs as taxable under the Code.” In the opinion of the learned judge delivered at special term he says: “The court has power to award costs to the successful party under section 3240 of the Code, and that the costs so awarded are those given in an action for similar services.” That section provided that “costs in a special proceeding instituted in a court of record, * * * where the costs thereof are not specially regulated in this act, may be awarded to any party, in the discretion of the court, at the rates allowed for similar-services in an action brought in the same court. * *' *” The section is found in chapter 21, tit. 1. In the same title is found section 3250 of the Code of Civil Procedure, which provides as follows: “This title does not"affect any provision contained elsewhere in this act, or in any other statute, remaining unrepealed after this chapter takes effect, whereby the award of costs is specially regulated in a particular case otherwise than as prescribed in this title. ” We are of the opinion that section 3240 is not applicable to the case in hand. We think Hauxhurst v. Ritch, 119 N. Y. 621, 23 N. E. Rep. 176, does not support the contention of the respondent. At the close of the opinion in tha.t case it was said: “Yo other objection is argued, except to the allowance of costs, which were in the discretion of the court, and not subject to our review. Denise v. Denise, 110 N. Y. 568, 18 N. E. Rep. 368.” By a reference to Denise v. Denise, we find it said, at page 568, 110 N. Y., and page 370, 18 N. E. Rep.: “The present case is that of a special proceeding under the statute, where the determination of the matter was referred by the consent of both parties, and is not controlled by section 1836.” And the conclusion reached was that the judgment appealed from should be affirmed, with costs. The judgment thus affirmed is indicated in 41 Hun, at page 13, where it is said: “Motion to confirm referee’s report and for judgment granted, the plaintiff to recover referee’s fees and disbursements, together with the costs of this appeal to be paid out of the estate.” It must be assumed, therefore, that the expression found in Hauxhurst v. Ritch, supra, sustains the right to recover the referee’s fees and disbursements only in the proceeding before the referee, and the costs of the appeal.

The following conclusions are reached: (1) The reference had in this case was a special proceeding. (2) The plaintiff was entitled to recover the referee’s fees and disbursements. (3) The plaintiff was hot entitled to recover the taxable costs as in an action, to wit: Before notice of trial, $15; after notice and before trial, $15; trial fee, $30; trial occupying more than two days, $10. (4) The order appealed from should be reversed, with $10 costs and disbursements. (5) The judgment should be modified by striking therefrom all costs entered therein exclusive of the referee’s fees and disbursements. Order reversed, with $10 costs and disbursements. Judgment modified as stated in the opinion. Order to be settled before Hardin, P. J.

All concur.  