
    J. Henry Hallock, Resp’t, v. Etta D. Bacon et al., Executrices,. App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 13, 1892.)
    
    1. Husband and wife—Husband’s liability for wife’s medical attendance.
    Presumptively and primarily the husband is liable to furnish medical attendance for his wife, and in the absence of any special agreement on. the part of the wife to pay, the husband is liable.
    2. Reference—When findings will not be disturbed.
    Where the findings of a referee are fairly sustained by the evidence the court will not interfere.
    3. Decedents’ estates—Costs.
    When a disputed claim against an- estate is referred, the referee has no power to allow costs against an executor or administrator to be levied on-his property or that of the deceased; such costs can only be allowed by the court, on motion, after trial.
    Appeal from a judgment, entered in Onondaga" county, in favor • of the plaintiff, upon the report of a referee; also, from an order of the special term confirming the report of the referee, and denying a motion made by the defendant on a case and exceptions for a new trial, upon a claim presented against the estate of Emma B. Sharer, rejected by the executors. A reference was had under the statute, with the sanction of the surrogate, and a trial took place before the referee, who found as a conclusion of law: “ The plaintiff, J. Henry Halloek, is entitled to recover against Etta D. Bacon and Alice A. Salisbury, as executrices of the last will and testament of Emma B. Sharer, deceased, the sum of one hundred and fourteen dollars, with interest thereon from August 1, 1890, and the said interest amounts to six dollars and fifty cents, making in all $120.50, with costs.” The referee directed judgment accordingly by a report dated August 19, 1891. On the 14th of September, the attorney for the plaintiff stipulated to take judgment for the sum of $114, remitting $6.50, the interest allowed by the referee. Judgment was entered on the 14th of September, 1891, for $114 damages only, “ with $145.50 costs.”
    
      H. M Miller, for app’lts; J. William Wilson, for resp’t.
   Hardin, P. J.

Plaintiff’s claim is for medical services and attendance upon the deceased from the 23d of March, 1890, to the-23d of July, 1890, at which time she died, having been afflicted with a cancer of the uterus, requiring exceptional services on the part of the plaintiff. The referee found that the plaintiff visited the patient “ in performance of his professional duties, every other day, commencing March 24, until July 23, being sixty visits; and in addition to these regular calls he visited her on other occasions, being sent for specially, in the meantime making in all seventy-two visits. The value of the services so rendered by the-plaintiff is one hundred and fifty dollars; ” there is a balance unpaid of $114.

The deceased was a married woman at the time the services were performed, living with her husband at Syracuse, where she had lived several years before, and when she died she left her surviving her husband and two minor children; and she left a last will and testament which were admitted to probate, and the appellants were appointed executrices. It appears that her husband was a laboring man earning in the neighborhood of fifty or sixty dollars per moifth, having little or no means or pecuniary responsibility. Presumptively and primarily the husband is liable to furnish medical attendance for his wife, and “in the absence of any special agreement on the part of the wife to pay, the husband is liable.” Estate of Mrs. Shipman, 22 Abb. N. C., 291. The referee found: “During her sickness, and on or about March 23,1890, the said Emma B. Sharer personally employed the said J. Henry Hallock to attend her as her physician.” Whether such employment was made by the deceased was a question of fact to be determined by the referee. Cutter v. Morris, 26 St. Rep., 508. Having looked into the evidence given on the hearing before the referee, we are of the opinion that the evidence sustains the finding, and that his conclusion upon the evidence is in accordance with the weight of the testimony, and that we ought not to interfere with the finding. Roosa v. Smith, 17 Hun, 138; Crim v. Starkweather, 36 St. Rep., 314 ; Ellison v. Sessions, 44 id., 644.

(2) We have looked at the numerous exceptions taken during the progress of the trial and also to the exceptions taken to the findings of fact and of law, and to the refusals to find, and we are of the opinion that they present no prejudicial error; we therefore sustain the referee’s report upon the merits, and the judgment for $114 should remain. The action of the referee as to costs was unauthorized. In Bailey v. Bergen, decided by this court in 1875, and reported 5 Hun, 555, upon an opinion prepared by Merwin, J., it was held: A referee has no power to allow costs against an executor or administrator, to be. levied on his property or on that of the deceased. Such costs can only be allowed by the court, on motion after trial.” 2 R. S., 90, § 41; Howe v. Lloyd, 2 Lansing, 335; S. C., 9 Abb., N. S., 257.

judgment modified by striking therefrom the costs other than the disbursements, and as so modified affirmed, with costs of the appeal to the respondent.

Martin and Merwin, JJ., concur.  