
    Mortimer Hendricks, Resp’t, v. Montefiore Isaacs, as Ex’r, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    1. Costs—In proceedings upon a reference against estate op deceased-
    person—Code Civ. Pro., §§ 1835, 1836.
    The costs in proceedings upon a reference under the statute of a claim against the estate of a deceased person are not controlled by the provisions of the Code Civil Procedure, §§ 1835, 1836, in reference to costs in an action against an administrator or executor in his representative capacity, and the court has power to award costs, although the conditions precedent to the right of the court to award costs in an action, as required by section 1836, are absent.
    2. Same—On appeal.
    It is for the appellate court to determine as to whether in case of art appeal costs shall, or shall not be, allowed against an executor or administrator.
    Appeal from judgment entered on the report of a referee upon a reference of a claim against the deceased, and also from an order granting costs and allowance.
    
      William Man, for app’lt; Abram Kling, for resp’t
   Van Brunt, P. J.

—The question of the right of the-plaintiff to maintain this proceeding and to recover therein, seeems to have been disposed of in the case of Hendricks v. Isaacs (46 Hun, 239; 11 N. Y. State Rep , 527), and also by the case of Rohrbach v. The Germania Fire Ins Go. (62 N. Y, 47) It is, therefore, not necessary to discuss those, points again.

The only other question which remains to be considered, arises upon the appeal from the order granting costs and extra allowance to the plaintiff. The right to costs seems to be governed by the provisions of the Revised Statutes, which provide that in these proceedings the court may adjudge costs as in actions against executors.

Were it not for the decision of the court of appeals in. the case of Denise v. Denise (110 N. Y., 562; 18 N. Y. State Rep., 873) we would be of the opinion that costs in. such proceedings were regulated by the provisions of sections 1835 and 1836 of the Code But in that case it is distinctly held that as these proceedings are special proceedings under the statute they are not controlled by the provisions of sections 1835 and 1836, and that the court may award costs although the conditions precedent to the right of the court to award costs in an action as required by section .1836 are absent.

In order, therefore, to enable the court to award costs, no certificate of the judge or referee before whom the trial took place was necessary. It also follows that costs as in an action and costs of an action cannot be allowed by the-•court, and all that the court can in the first instance adjudge by way of costs is the payment of the referee’s fees and other .disbursements necessarily incurred. The court, therefore, in the award of costs should have limited itself "to the award of such referee’s fees and disbursements, and had no power to grant an extra allowance.

The claim made that the plaintiff was entitled to the ■costs of the previous appeal because costs were awarded upon that appeal to abide the final event, stands upon an -entirely different foundation.

It is for the appellate court to determine as to whether in case of an appeal costs should or should not be allowed •against an executor or administrator. In this case the general term, in the rendition of its judgment, has awarded costs to the plaintiff in the event of his success upon a new trial, and having succeeded, he is clearly entitled to those costs. In the case of Denise v. Denise such .an award of costs was distinctly upheld.

It would appear, therefore, that the order awarding costs ■of the trials and extra allowance should be modified by striking therefrom all the costs of such trials except the referee’s fees and necessary disbursements, and the order for the extra allowance, and that such order as modified be •affirmed, without costs, and that the judgment appealed from should be modified by reducing the same by the amount of the costs and allowances taxed other than disbursements, and as modified, affirmed, with costs.

Brady and Daniels, JJ., concur.  