
    Mary M. Nellis, Resp’t, v. Amaziah Duesler, Executor, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 15, 1892.)
    
    Executors and administrators—Action on disputed claim—Costs.
    Where an action is brought against an executor upon a disputed claim, and the referee reports in favor of plaintiff, though the award is but one-tenth of the amount claimed, the plaintiff is entitled to costs if it appears-that the executor refused to refer the claim as prescribed by law.
    Appeal from an order of special term allowing costs to the-plaintiff on a recovery in an action prosecuted by her against the defendant as executor.
    
      Smith & Nellis (A. J. Nellis, of counsel), for app’lt; J. M. & H, Dudley, for resp't
   Mayham, P. J.

The plaintiff prosecuted this action in this court to recover of the defendant as executor a claim alleged to have arisen between the plaintiff and defendant’s testatrix for services rendered for the latter by the former in the life time of testatrix.

The action was tried before a referee, who reported in favor of the plaintiff. The claim presented by the plaintiff to the executor, and rejected by him, amounted to $2,551.04, and that was the,amount claimed in the complaint.

The referee reported due from the defendant’s testatrix to the plaintiff the sum of $192.90 and directed judgment therefor. On that report and affidavits the plaintiff moves for costs in favor of the plaintiff against the defendant and the court grants that motion, from which order the defendant appeals.

It appears from the findings of the referee that while a large proportion of the claim presented by the plaintiff to the executor which was rejected by him was disallowed by the referee, still a. portion of the claim made for services was allowed, and reported, as due the plaintiff.

Standing upon the report of the referee alone, the plaintiff' would not be entitled to costs against the executor. Code, .§ 1835.. Has the plaintiff brought this case within the provisions of the next section ? The claim seems to have been presented within the proper time. It was resisted by the defendant and payment, refused, but as there was such a disparity between the claim presented and the amount allowed, its resistance in .the form presented cannot be held to be unreasonable, and the defendant should not be chargeable with .costs, unless he refused to refer the-claim as prescribed by law. Upon this last ground there is a conflict in the evidence on this motion.

But that conflict seems to have been determined in favor of the plaintiff by the referee appointed to hear and determine that question, and we think upon that disputed question of fact there is-sufficient evidence to uphold his conclusion. But the concluding-paragraph of § 1836 of the Code of Civil Procedure in terms requires the facts upon which an allowance of costs against an executor is made to be certified by the Court or referee before whom the trial was had. The language is 'as follows: “ Where the action is brought in the supreme court, or in a superior city court, the facts must be certified by the judge or referee before whom the trial took place.”

In this case the referee who found that the plaintiff had offered to refer this claim, and that the defendant had refused to refer the same, was not the referee before whom the trial took place; but one appointed by the court to take the proofs Rearing upon that subject and report thereon to the court

On the hearing before that referee both parties appeared and participated in the investigation, and each swore and examined witnesses before the referee, and the defendant, before such referee was appointed, stipulated not to urge that such motion for costs should be founded upon the certificate of the referee who heard and decided the action, as provided in the portion of § 1836 above quoted.

We must therefore for the purpose of this motion hold that the plaintiff before he commenced this action offered to refer the disputed claim under the statute to a referee approved by the surrogate, and that the defendant refused to join in such reference.

The plaintiff was thus left, either to forego her entire. claim against this estate, or bring her action at common law to collect and enforce the same. We think, therefore, that the plaintiff had brought her case within the exceptions embraced in §§ 1835 and 1836 of the Code of Civil Procedure and as the amount of her recovery is sufficient to carry costs, the special term was right in awarding costs to the plaintiff against the defendant as executor.

Order affirmed, with ten dollars costs and printing disbursements.

Herrick, J., concurs; Putnam, J., not voting.  