
    HEARN v. SULLIVAN.
    N. Y. Supreme Court, Third District, Albany, Special Term,
    January, 1884.
    Motion to set aside Taxation of Costs.—Costs on Reference of disputed Claim against Estate ; Taxation, now REVIEWED.
    Where an order, confirming a referee’s report in favor of defendants directs “ that the defendant have judgment for costs and disbursements of this action against the plaintiff,” it is not error for the clerk to tax costs as in an action, as the order is his guide; if costs should have been taxed as in a special proceeding, the remedy is by-appeal from the order, and not by motion to set aside the taxation.
    Whether a reference of a disputed claim against an estate under 3 R. S. 89, §37, be deemed a “special proceeding ” or an “ action,” the court has power, under Code Civ. Pro. § 3340, to award costs “asin actions brought in the same court.”
    Motion to set aside a taxation of costs, and for a new taxation.
    Plaintiff presented a claim against the estate of defendant’s intestate, which was rejected and by agreement of the parties referred under the statute (2 R. S. 89, § 37). After trying the issue, the referee reported that the estate was not indebted to plaintiff, and that defendant, as administratrix was entitled to costs ; and on January 8, 1884, an order was granted by Mr. Justice Ingalls at special term confirming the report, and awarding costs and disbursements to the defendant. The essential part of the order was as follows:
    “Ordered, that the said report be and the same hereby is in all things confirmed, and that the defendant have judgment for costs and disbursements of this action against the plaintiff, to be taxed by the clerk of Rensselaer county, according to the statute in such case made and provided, together with $10 costs of this motion.”
    The order was duly entered, and on January 11, 1884, the defendant’s costs and disbursements were adjusted by the clerk in the sum of $102.69, under Code Civ. Pro. § 3251, the items allowed being the usual taxable costs in an action. Plaintiff objected to such taxation and afterwards moved at special term to set it aside.
    
      Townsend & Townsend, for the motion.
    I. The prevailing party is entitled to recover disbursements only. Code Pro. § 317; Avery v. Smith, 9 How. Pr. 349 ; Van Sickler v. Graham, 7 Id. 208.
    II. The proceeding is not “ an action,” but a “ special proceeding; ” the clerk accordingly erred in taxing the costs under Code Civ. Pro. § 3251. Boyd v. Bigelow, 14 How. Pr. 511 ; Roe v. Boyle, 81 N. Y. 305; Mowry v. Peet., 88 N. Y. 453.
    
      Seymour Van Santoord, in opposition.
    I. The only question to be considered on this appeal is as to the items allowed and taxed. The propriety of the allowance of costs can be reviewed only on an appeal from the order awarding costs. Code Civ. Pro. § 3265; Bailey v. Stone, 41 How. Pr. 346; Wehle v. Bowery Savings Bank, 40 Super. Ct. (J. & S.) 161.
    II. The provision of the order awarding costs was imperative, and the clerk was not at liberty to disregard it (Code Civ. Pro. § 3262; Ballou v. Parsons, 55 N. Y. 673), even although the awarding of costs was coram non judice. Olcott v. Maclean, 11 Hun, 394; Bailey v. Stone, supra.
    
    HI. Whether the proceeding is “an action” or a “special proceeding” the defendants might have costs: 1. Under the revised statutes, 2 R. S. 89 § 37; (Linn v. Clow, 14 How. Pr. 508; Boyd v. Bigelow, Id. 511; Munson v. Howell, 20 Id. 59 ; Radley v. Fisher, 24 Id. 404 ; Coe v. Coe, 37 Barb. 232). 2. Under the Code of Civil Procedure, § 3240.
   Westbbook, J.

The clerk did not err in allowing costs as in an action. The order of the special term, awarding costs, was his guide. The order was “ that the defendants have judgment for costs and disbursements of this action.” The order designates the proceeding as “an action,” and the remedy, if any, was by appeal from the order, and not by appeal from the taxation of this clerk, and thus to ask one special term to overrule another.

But the order of the special term was right. It is unnecessary to discuss the question whether this proceeding was a “special proceeding” or an “action,” for the statute (3 R. S. [6 ed.] 97, § 48), has declared that when costs are awarded in such a matter they shall be “as in actions against executors,” and although it was a “special proceeding,” the court had power (Code Civ. Pro. §3240) to award costs “as in actions brought in the same court.”

Motion denied, with $10 costs.  