
    Bertholf v. Carr.
    
      (Supreme Court, General Term, First Department.
    
    July 9,1889.)
    ■Costs—Reference of Claim Against Estate.
    Code Civil Proc. § 3346, providing that, in a suit by or against an executor in his representative capacity, costs must be awarded as in actions by or against a person suing or defending in his own right, supersedes section 317 of the old Code, providing that, when a claim against a deceased person is refused, the prevailing party shall recover the fees of referees, witnesses, and other necessary disbursements, and a claimant recovering a judgment is not entitled to disbursements.
    Appeal from special term, Hew York county.
    Sarah Bertholf recovered judgment against Alfred Carr, executor, on a claim against an estate, and appealed from an order refusing her motion to be allowed the fees of referees, witnesses, and other disbursements. Code of Procedure, § 317, as amended by Laws 1851, c. 479, provides that: “ Whenever any claim against a deceased person shall be referred pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses, and other necessary disbursements, to be taxed according to law.”
    Argued before Van Brunt, P. J„ and Maoomber and Bartlett, JJ.
    
      John Townshend, for appellant. A. B. Carrington, for respondent.
   Per Curiam.

The claim of the appellant against the respondent, as executor, was referred to a referee under the statute. The claimant recovered a judgment. She concedes on this appeal, that she was not entitled to costs, but insists that she should have been allowed the fees of the referee and witnesses and other necessary disbursements. The question thus raised has been passed upon adversely to the contention of the appellant by the general term of the Third department, which held in the case of Miller v. Miller, 32 Hun, 481, that section 3246 of the Code of Civil Procedure is a substitute for section 317 of the old Code, and withholds from the successful claimant the right to disbursements which he had under the latter section. There was no ■error in the action of the court below, and the order there made should be affirmed.  