
    VAUGHN v. STRONG, (two cases.)
    (Supreme Court, General Term, Third Department.
    November 22, 1892.)
    -1. Executors and Administrators—Resisting Claims—Costs. Where, in special proceedings on claims against an administratrix, it appears that defendant found, among papers of deceased, documents in his handwriting, from which she had a right to assume that the claims were unjust; and that on two successive trials referees had found in defendant’s favor,—it is erroneous, on judgment being rendered against her on the third trial, to grant a motion for costs on the ground that payment had been unreasonably resisted.
    "-3. Same—What Statute Applies. Code Civil Proc. § 3240, provides that costs in a special proceeding may be awarded at the same rates and in like manner as in an action. Section 1836 provides that, where plaintiff’s claim in an action against an administrator is “unreasonably resisted,” the court may award costs against the administrator. Held that, where a contested claim against a decedent’s estate is referred under the statute, costs are governed by section 3240, and may be awarded against the administrator where he “unreasonably resists ” the claim, though Code Proc. § 317, providing that when a claim against a decedent is referred the prevailing party may recover his referee’s fees and disbursements, is still ‘ in force, since that section is silent as to costs.
    Appeal from special term, Washington county.
    Thomas S. Vaughn and Nancy L. Vaughn each presented a claim to Mary M. Strong, administratrix of the estate of Thomas J. Strong, deceased, for money had and received by the decedent in his lifetime. Each claim was rejected by the administratrix, and a reference was had under the statute. There was á judgment for plaintiff on each claim on the report of the referee, which was confirmed by the special term. From an order allowing costs against defendant, she appeals. Reversed.
    For decision on appeal from judgment, see 21 N. Y. Supp. 550. For former reports, see 4 N. Y. Supp. 686, and 12 N. Y. Supp. 251.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Grenville M. Ingalsbee, (T. A. Lillie, of counsel,) for appellant.
    D. J. Sullivan, (W. Farrington, of counsel,) for respondent.
   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 aEowing 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 bad a right to assume that the fund in dispute in these proceedings had been properly disbursed by him in his lifetime, 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 cost for resisting the aEowance 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, 103 N. Y. 666, 9 N. E. Rep. 55, 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 justify 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, (Sup.) 5 N. Y. Supp. 405; Fredenburg v. Biddlecome, 17 Wkly. Dig. 25. See, also, Redf. Sur. 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, (Sup.) 19 N. Y. Supp. 101. 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 $10 costs' and printing disbursements.

PUTNAM, J.,

(concurring.) 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. Code Civil Proc. §§ 1835,1836. Had it appeared, however, that the payment of the claim in suit was unreasonably resisted and neglected, I am not prepared to say that costs could not have been properly allowed under section 3240, Code Civil Proc. It has been suggested that, although a reference under the statute is a special proceeding, section 3240, supra, does not apply, because, as.held in Larkins v. Maxon, 103 N. Y. 680, 9 N. E. Rep. 56, (3 Birdseye, St. 2614, 2615,) section 317 of the Code of Procedure is yet in force, and that section regulates the award of costs on such a reference. By section 3250, Code Civil Proc., it is provided that the title therein as to costs (including section 3240, supra) shall not affect any provision of any other unrepealed statute regulating the costs in any particular case. But in fact section 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 section 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 section 317 of the Code of Procedure.

HERRICK, J., concurs. 
      
       Section 1836 provides that where it appears, in an action brought against an administrator in his representative capacity for money only, that payment of the plaintiffs demand was unreasonably resisted or neglected, the court may award costs against the administrator, to be collected either out of his individual property, or out of the property of the decedent, having reference to the facts which appeared on the trial.
     
      
       Section 3240 provides that “costs in a special proceeding, instituted in a court of record, or upon an appeal in a special proceeding taken to 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, or an appeal from a judgment taken to the same court, and in like manner. ”
     