
    James A. Nichols and Others, Respondents, v. Edward J. Moloughney and Michael Moloughney, Jr., as Surviving Executors, etc., of Michael Moloughney, Deceased, Appellants.
    
      Stipulation “ that the costs of the reference are to be taxed as the costs of the case ”— what is covered thereby—a claimant who has not presented his claim within the time prescribed cannot recover costs — disbursements must rest on an allowance of costs.
    
    An action brought against the executors of a decedent in their representative capacity, to recover for goods alleged to have been sold and delivered by the plaintiffs to the decedent was, by a stipulation, referred to a referee to hear, try and determine. TJpon the trial it was stipulated “ that the costs of the reference are to be taxed as the costs of the case.”
    
      Held, that,, as the plaintiffs’ claim had not been presented within the time limited by the published notice to present claims, the plaintiffs were not entitled to the costs of the action;
    That the term “ costs of the reference,” as used in the stipulation, meant the ordinary expenses incident to the reference, namely, disbursements, referee’s fees, witness fees and other proper charges;
    That, as costs could not be allowed, the plaintiffs, notwithstanding the terms of the stipulation, were not entitled to recover for disbursements, for the reason that a recovery of the disbursements cannot stand except upon the foundation of a recovery of costs.
    Bartlett and Jbnks, JJ., dissented.
    Appeal by the defendants, Edward J. Moloughney and another, as surviving executors, etc., of Michael Moloughney, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 3d day of July, 1902, upon the report of a referee.
    
      George 8. Hamlvn, and Andrew M. Olute, for the appellants.
    
      A. Dubois and Henry D. Hotchkiss, for the respondents.
   Hooker, J.:

This is an action brought against the executors of the estate of one Michael Moloughney for goods, wares and merchandise sold and delivered. The plaintiffs were wholesale grocers, and they claim to have sold their wares during a portion of the years 1897 and 1898 to the defendants’ testator, who was, as they say, the-owner and proprietor of a store at Bath Beach. The defendants very strongly contend that after the fire which consumed the testator’s old store building at Bath Beach, the building was run by one of the sons of the testator. The referee has found upon conflicting-evidence that thé goods were sold and delivered to the testator and that his estate is liable. With this finding we are not disposed to-interfere. There was in our opinion abundant evidence to justify it, although some of the evidence offered upon behalf of the defendants might well cause a trial court or referee moments of doubt.

We have carefully examined the scores of exceptions taken by the defendants; most of them were taken to rulings of the referee sustaining objections to questions which called for conclusions of the witnesses. These were not error. We think some of the exceptions; were well taken, but our examination of the record convinces us ■that in all of those cases the evidence sought to be introduced and which was erroneously excluded from the case, was later supplied by one side or the other before the close of the evidence. The record impresses us that both parties had a full and fair hearing.

During the trial it was stipulated “ that the costs of the reference are to be taxed as the costs of the case,” and the referee in his decision found as matter of law that the plaintiffs were entitled to enter a judgment which should include the necessary disbursements of the plaintiffs since the order of reference, to be taxed as costs of the case. The defendants excepted to this conclusion of law.

Section 1836 of the Code of Civil Procedure does not permit us to sustain this conclusion of the referee. The section, as far as it is; important here, reads as follows : “ Where it appears in a case specified in the last section (one where judgment for a sum of money only is rendered against an executor in an action brought against him in his representative capacity) that the plaintiff’s demand was presented within the time limited by a notice published as prescribed by law, requiring creditors to present their claims and that the payment thereof was unreasonably resisted or neglected, * * * the court may award costs against the executor * * The notice to creditors was dated the 12th of July, 1898, and they were required to exhibit their claims and vouchers thereof on or before the 22d day of January, 1898. Plaintiffs’ claim was, however, not verified until the 7th day of March, 1899, and under the provisions of that portion of the section which we have just quoted, they were not entitled to costs of this action.. The reference was an ordinary reference to hear, try and' determine, made upon stipulation in an action commenced by summons in the Supreme Court. This requires a study of the exact language of the stipulation. That refers to the “ costs of the reference ” and provides that they are to be taxed as costs of the case. The term “ costs,” as applied to a reference of this character, has no defined legal meaning; our attention has not been directed to any such language in the Code of Civil Procedure. We think that the import of these words as used by counsel was the ordinary expenses incident to a reference, namely, disbursements, referee’s fees, witness fees and other proper charges, as upon the trial of a case, and that consequently the stipulation meant that the disbursements and expenses of the reference should be taxed as part of the costs of the case.

If we are right in this the referee erred in his finding, because it being improper to tax costs, it was impossible to tax disbursements, for the latter cannot stand except upon the foundation of the former.

The judgment should, therefore, be modified by striking out all reference to disbursements, and as modified affirmed, without costs of this appeal.

Goodrich, P J., and Hirschberg, J., concurred;,Bartlett and Jenks, JJ., voted for affirmance.

Judgment modified in accordance with opinionof Hooker, J., and as modified affirmed, without costs. ■ •  