
    Nannie L. Vaughn, Resp’t, v. Mary M. Strong, Adm’rx, App’lt. Thomas S. Vaughn, Resp’t, v. Mary M. Strong, Adm’rx, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    Decedent’s estates—Costs.
    Where the personal representative of a decedent is justified by the papers in his possession in believing that the claim presented is unfounded, and on two successive trials has succeeded, it cannot be said that he unreasonably resisted the claim or acted in bad faith so as to render him chargeable with costs on a final recovery against him.
    Appeal from order allowing costs against defendant as administratrix in each of the above proceedings.
    
      C. M. Ingalsbe, for app’lt; D. J. Sullivan, for resp’ts.
   Mayham, P. J.

This is an appeal from an order of a special term of this court, allowing costs against the defendant as administratrix in each of the above special proceedings. The proceedings arose out of claims presented by the plaintiff to the administratrix against the estate of the intestate which were rejected by the administratrix and referred under the statute. On the first trial before the referee the report was in favor of the defendant and from the judgment entered thereon an appeal was taken and the judgment reversed, on the ground of error committed by the referee in the admission of evidence on the trial On the second trial a like result was reached by the referee in favor of the defendant and the judgment entered thereon was again reversed, on the ground of the receipt of illegal evidence. On the third trial the report was in favor of the plaintiff, and on this trial the referee certifies that the claims were unreasonably resisted, and on a motion for costs at special term an order was made allowing costs in each of these cases.

Upon the affidavits used at the special term on this motion and the papers and proceedings on which this motion was made, we cannot agree either with the referee or the learned judge at special term that these claims were unreasonably resisted.

The uncontradicted affidavit of the administratrix shows that she found among the papers of the deceased papers and documents in his own handwriting, from which she had a right to assume that the fund in dispute in these proceedings had been properly disbursed by him in his life time, and that none of the money received by him remained in his hands or estate at the time of his death.

Add to this the fact that on two successive trials two intelligent referees had found that the estate represented by the administratrix was not liable for these funds, and it is difficult to see how it can be said that the administratrix had unreasonably resisted the payment of this claim.

The law seems well settled that an administrator will not be charged with costs for resisting the allowance of a claim referred under the statute where such administrator has acted with reasonable and good faith in resisting the claim although it be finally allowed.

In Johnson v. Myers, Ex’rx, 103 N. Y., 666 ; 3 St. Rep., 655, which arose on a disputed claim, the court in discussing the question of costs against the executor, say : “We discover no trace of bad faith in the defense interposed, but much to j ustify the inquiry and examination which it compelled. For this reason, we think, costs should not have been awarded, and we, therefore, reverse the order appealed from.” And this seems to have been the rule under the Revised Statutes, and has not been changed by the Code. Nicholson v. Showerman, 6 Wend., 554; Pursell v. Fry, 19 Hun, 595; Bailey v. Schmidt, 19 St. Rep., 50; Fredenhurg v. Biddlecome, 17 W. Dig., 25; see, also, Redfield’s Surrogate’s Practice, 529, 530.

Applying this rule to the case .at bar, we do not see how costs, as such, can be charged against the defendant in these proceedings.

But the learned judge in the order allowing costs directs that they shall be allowed the same as though it was an action in the supreme court from the commencement.

In this we think the learned judge erred. Hallock v. Bacon, 45 St. Rep., 489. The reference in this case was a special proceeding, and not an action, and we do not see upon what principle the costs as in ordinary action could be allowed, if. at all. The judgment in which the costs in this order were inserted has been reversed at this term.

The order should be reversed, with ten dollars costs and printing disbursements.

Putnam, J.

The payment of plaintiff’s claim was not unreasonably resisted, and, therefore, plaintiff should only recover his disbursements. The same rule should govern the granting of costs on reference under the statute as in an action against executors and administrators.. Civil Code, §§ 1835, 1836. Had it appeared, however, that the payment of the claim in suit was unreasonably resisted or neglected, I am not prepared to say that costs could not have been properly allowed under § 3240, Civil Code. It has been suggested that, although a reference under the statute is a special proceeding, § 3240 (supra) does not apply, because, as held in Larkins v. Maxon, 103 N. Y., 680; 3 St. Rep., 642; Birdseye Stat., vol. 3, 2614, 2615, § 317 of the Code of Procedure is yet in force, and that section regulates the award of costs on such a reference. By § 3250, Civil Code, it is provided that the title therein as to costs (including § 3240, supra), shall not affect any provision of any other unrepealed statute regulating the costs in any particular case. But in fact § 317, supra, does not regulate the award of costs in such a case. It is silent upon that subject It merely provides that the prevailing party may recover his referee’s fees and disbursements. It strikes me, therefore, that § 3240, supra, may apply to such a reference, and that when the payment of a claim against a deceased party is unreasonably contested, the court may award costs in addition to the disbursements which the prevailing party is entitled to under the provisions of § 317 of the Code of Procedure.

Herrick, J., concurs.  