
    Mary Osborne, Appellant, v. Sarah E. Parker, as Administratrix, etc., of Franklin J. Parker, Deceased, Respondent.
    
      Reference of a claim against a decedent’s estate — when the existence of a counterclaim thereto does net give a justice of. the peace jurisdiction thereof—costs including disbursements, awarded by the referee where the recovery because of the counterclaim is less than §50 —power of the Special Term over the costs and disbursements.
    
    A claim of §114 and interest against a decedent’s estate for the use of a right of way having been rejected by the administratrix, a reference of the claim was ordered pursuant to the statute. The referee allowed the claim of the plaintiff in full, but credited the defendant with the amount of a note, which she held against the plaintiff and a third party, on which there was concededly due the sum of §113.86. He, therefore, rendered judgment in favor of the plaintiff for the balance of her claim “besides the referee’s and stenographer’s fees and the disbursements of the action." The counterclaim grew out of a transaction entirely independent of the claim presented.
    On a motion for retaxation the Special Term granted costs to the defendant and • disallowed the disbursements allowed by the referee to the plaintiff. .
    
      Held, that the original taxation should be confirmed;
    That section 2863 of the Code of Civil Procedure, as amended by chapter 527 of the Laws of 1895, which gives a justice of the peace jurisdiction of a demand against an executor or administrator “where the amount of the claim is less than the sum of fifty dollars,, and the claim has been duly presented to the executor or administrator and rejected by him,” did not render it incumbent upon the plaintiff to bring the action in the Justice's Court, as it was entirely optional with the defendant whether or not to offer the note as a counterclaim;
    That the provision of section 2718 of the Code of Civil Procedure, requiring the claim to be- supported by an affidavit “ that no payments have been made thereon and that there are no offsets against the same to the knowledge of the claimant,” does not establish that the amount of the claim is the sum remaining unpaid after deducting existing offsets or counterclaims;
    That section 317 of the Code of Procedure, providing that on a reference pursuant to the statute, “ the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law, ” has not been repealed and is still in force.
    
      Qucere, as to the power of the Special Term on' a motion for retaxation of costs to strike out the allowance of disbursements to the plaintiff and award costs to the defendant.
    Appeal by the plaintiff, Mary Osborne, from an order of the 'Supreme Court, made at the Genesee Special Term and entered in the office of the clerk of the county of Genesee on the 5th day of March, 1901, granting costs in the above-entitled action in favor of the defendant and against the plaintiff and directing the clerk of Genesee county to retax the disbursements allowed by him to the. plaintiff by ■ disallowing the same, and that the judgment theretofore entered in the action he corrected accordingly.
    The plaintiff presented a claim of $114, besides interest,' for use of a right of way to the defendant, who was the administratrix of the goods, etc., of her deceased husband. The claim was rejected, and upon the written agreement of the parties an order of reference was entered with the approval of the surrogate and a trial had before a referee. The referee allowed the claim of the plaintiff in full, but he reduced it by reason of the promissory note held by the defendant against the plaintiff and one Nehemiah Osborne and on which there was concededly unpaid at the time of the trial $113.06, leaving due the plaintiff $9.18, for which the referee awarded judgment “ besides the referee’s and stenographer’s fees and the disbursements of the action,” which were subsequently taxed by the clerk at $152.01 and included in the judgment. The plaintiff upon presenting her claim accompanied it by her affidavit verifying that it was justly due; that “ no part of the same has been paid and that there are no counterclaims thereto to the knowledge of deponent.” At the time of the presentation of the claim the note was a due subsisting demand against the plaintiff and said Osborne, and was in the custody of the defendant’s attorney, H. B. . Cone, who was acting in her behalf in this action. The referee finds that at the time of the presentation of the claim “ the said Cone, agent and attorney for the defendant, was asked by the agent of the plaintiff, Nehemiah Osborne, one of the makers of the note, whether he wanted the note paid then, and that said attorney and agent of said defendant intimated that said note might wait the result of the reference to be taken upon the claim presented by the plaintiff, and that the claim need not be paid now, meaning at that time; that'.' thereafter the aforesaid stipulation of reference was made and signed by the respective parties; that in entering into said stipulation the plaintiff relied upon aforesaid statements of said attorney, and agent of the defendantthat daring the trial of this action-before me,-the said attorney for the defendant introduced the mote-as a counterclaim; that thereupon the plaintiff, in open court,, offered to pay the amount due upon said note and made atender in open court on Sept. 28,1900, of. one hundred and ten dollars and fifty cents, the amount then due upon said note, which was not' accepted.”
    
      Frank W. Ballard, for the appellant.
    
      H. B. Cone, for the respondent.
   Spring, J.:

.'The amendment to section 2863 of the Code of Civil Procedure,, giving a justice of the -.peace jurisdiction of a demand against an executor or administrator, was added by chapter 527 of the Laws of 1895, and vests that official with authority “ where the amount of, the claim is less than the sum of fifty dollars, and the claim has-been duly presented to the executor or administrator and rejected - by him.” . ;

Is the claim in the present case the one presented and rejected, or the amount of that claim, less the counterclaim allowed by the-referee ?

The counterclaim was for borrowed money, was entirely independent of the claim presented, and existed against the plaintiff; and one Osborne. .It was optional with, the defendant whether this was offered as a counterclaim. The defendant might elect to sue the two makers of the note in a separate action, preferring to-, recover judgment against both of them -than risk the hazard of collecting against the plaintiff. The defendant had disputed- the-claim presented, and the controversy upon the trial was wholly over that demand. If the defendant succeeded in defeating that demand-she probably could not recover any affirmative judgment against the plaintiff. (Mowry v. Peet, 88 N. Y. 453 ; Eldred v. Eames, 115 id. 401.) And even if that were possible she might hot desire it. The plaintiff by admitting the validity of the note- could not confer'jurisdiction upon the justice. The defendant had control of the counterclaim, not the plaintiff or the justice: If the counter-, claim had exceeded the claim presented -by forty dollars, and Osborne, the other maker of the note* had resided in Suffolk county,, and all the note except the -forty dollars had been allowed as a counterclaim against the protest of the defendant and applied in. extinguishment of the plaintiff’s claim,-if the plaintiff were irresponsible, that determination ’would leave the 'defendant to recover the balance due upon the note in a suit in a Justice’s Court againsOsborne in the county of Suffolk. The court would have no' right to put the defendant to that extremity against her will. The point is that where the person sued upon a demand has a claim not arising out of the transaction which gave birth to the cause of action sued upon, there is no obligation that the defendant must have his claim determined in the forum chosen by the plaintiff. Jurisdiction cannot be bestowed upon a court of limited power todétermine a demand' where that' jurisdiction depends upon an' admission of a claim of this kind. The defendant has the sole dominion over his claim, and it rests with him to present it or not as he likes. It does not become a counterclaim until he consents te make it so. If the plaintiff in this case had brought her action in a Justice’s Court, and proved her claim and rested, a dismissal of her cause of action would have followed, because not within the jurisdiction of the justice. If she had admitted the claim and sued for the balance, the defendant could still have refused to submit the validity of her claim' to be determined. She might not wish to-have complicated it with the one she was contesting, and it could not be dragged in without her consent.

The' soundness of this conclusion is well illustrated by another subdivision of this same Code section. A justice of the peace has no jurisdiction where the sum total of the accounts of both parties proved to the satisfaction of the justice exceeds four hundred dollars.” (Code Civ. Proc. § 2863, subd. 4.) In construing this provision, or rather a like provision in the Revised Statutes, the courts have repeatedly held jurisdiction was not conferred by the plaintiff admitting the demands of the defendant as a set-off or counterclaim where the two claims exceeded $400. In Lund v. Broadhead (41 How. Pr. 146) the plaintiff sued in the Supreme Court on a claim of $450 and admitted that the defendant had a counterclaim or set-off to the plaintiff’s account amounting to $409.13. On the trial he recovered $40.87, and costs were taxed in his favor. On the motion for their readjustment on the ground that the justice of the peace had jurisdiction, Judge Marvin, in a well-considered opinion, held that the admission of the counterclaim did not bring the action within the compass of a justice of the peace; that only by payments or where it appeared by the complaint “ that the parties had settled the accounts and struck a balance” could the action be maintained in a Justice’s Court. The learned judge says (at p. 150): “ The admission is that the defendants have a counterclaim or set-off and the plaintiff asked judgment for the balance. Suppose the defendants had denied the complaint and had not plead a counterclaim or set-off, what would have been the condition of the plaintiff ? If the demands of the defendants were counterclaim or set-off, tlie plaintiff had no power to apply them in the reduction of his • account. If the defendants refused to plead and prove their counterclaim or set-off, they could have sued and recovered the whole amount, and if the plaintiff had contented himself with a judgment for the balance, he might be subjected to great loss.” (See, also, Griffen v. Brown, 35 How. Pr. 372; Sherry v. Cary, 111 N. Y. 514, 517 ; Lablache v. Kirkpatrick, 8 Civ. Proc. Rep. 340; Hayes v. O' Reilly, published in connection with case last cited at page 347.)

It is contended that inasmuch as the Code of Civil Procedure, section 2718, provides that the executor or administrator may require the claimant to support his claim by his affidavit, “ that no payments have been made thereon and that there are no offsets against the same to the knowledge of the claimant,” that the real claim is the sum unpaid after deducting whatever offsets or counterclaims may exist. This provision was operative long before the amendment of the Code of Civil Procedure mentioned giving courts of the justice of the peace jurisdiction in entertaining claims under fifty dollars against an executor or administrator. (See 2 R. S. [4th ed. 1852], pt. 2, chap. 6, tit. 3, § 40 [35] p. 274.) The object of this requirement is to prevent imposition upon estates of decedents^ not to confer jurisdiction upon a court. To quote from Dayton on Surrogates (at p. 851): “ The object of requiring the affidavit of the creditor is not. to prove the existence of the debt, as it is not evidence for that purpose. But it is to prevent the exhibition of fictitious claims against the estate of the decedent .which have been discharged by him in his lifetime; and also to prevent the allowance of claims against which there existed a legal off-set, known only to the party presenting such claim, and which those who aré interested in the estate of the decedent may be unable to establish by legal proof.”

If the plaintiff had sued her claim before a justice of the peace admitting in her complaint the validity of the counterclaim, and the defendant had answered by a general denial, the latter could have sued the admitted counterclaim, recovered a judgment thereon, and collected it, perhaps, during the pendency of the action in the Justice’s Court. In that event it would not be contended that the justice had jurisdiction unless the plaintiff was willing to relinquish the major part of her demand. During the pendency of .this action before the justice of the peace she might have sold the note, vesting a good title in the purchaser. These rights arise from the fact that it was not within the purview of any court until she chose to bring it there.

The rule which governs as to payments is not applicable to a case of this kind. In an action brought upon a claim where payments have been made, the defendant must prove them or lose the benefit of them.

While of no especial import, the conduct of the defendant indicates that there was no intention to present this note as a counterclaim. The plaintiff was willing to pay it when she presented her claim, but the attorney for the defendant said payment could be deferred until the claim rejected could be disposed of, . The defendant attempted to make an offer of judgment which was a nullity, because not in compliance with section 738 of the Code of Civil Procedure. The amount stated in the offer was thirty dollars; certainly this could not have meant thirty dollars above the counterclaim, because there was less than the sum of ten dollars due the plaintiff if defendant’s note was-to be deducted. ' At that time the defendant obviously was expecting a reduction of the plaintiff’s claim and was seeking to ward off costs or disbursements in the event the plaintiff was partially successful on the claim presented. If the plaintiff had accepted this offer it could not be claimed that by so doing she would have extinguished the counterclaim. We are accordingly satisfied that a justice of the peace could not have taken cognizance of this action.

We have very grave doubts as to the right of the Special Term to interfere with the decision of the referee by expunging the disbursements he allowed and interpolate costs on behalf of the defendant. We appreciate that costs in an action at law are a matter of right, and that in a great measure the same rule obtains as to their allowance by a referee upon a statutory reference as upon an action commenced. This is not entirely so, however! If the plaintiff succeeds he cannot recover costs against an executor or administrator unless the claim has been unreasonably resisted or neglected (Code Civ. Proc. § 1836), and even, then there is a discretionary power to determine whether they shall be awarded out of the property of the decedent or visited upon the defendant personally. (Id.) To be sure, the rule is that if the plaintiff is not entitled to costs the defendant may recover them. (Adams v. Olin, 78 Hun, 309 ; Lamphere v. Lamphere, 54 App. Div. 17.) If the sections of the Code governing costs generally are applicable to this case then the attempt of the referee to allow the plaintiff her disbursements was a nullity, and in that respect his decision could be ignored. There is, however, an independent provision still in force as to disbursements upon references of this kind. Section 317, Code of Procedure, provided that on a reference pursuant to statute the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law.” This power was expressly retained by the Legislature upon repealing the Code of Procedure (Laws of 1880, chap. 245, § 3, subd. 8) and the original Code provision is still in force. (Niles v. Crocker, 88 Hun, 312; Larkins v. Maxon, 103 N. Y. 680.) In Whitcomb v. Whitcomb (92 Hun, 443, 447), while the plaintiff was not allowed costs against the administrator because of the absence' of the certificate of the referee that the claims presented were unreasonably resisted or neglected, he was still permitted to recover his necessary disbursements, thus recognizing the existence of the rule we are contending for. On such a reference the authority of the referee pursuant to this provision is confined to determining who is the prevailing party and allowing disbursements to that party. If the referee possesses any discretion whatever over the matter of costs, the only method by which its exercise can be challenged is by appeal. (Rosa v. Jenkins, 31 Hun, 384.) It is not the province of a coiirt on .motion to correct the errors of & judge or referee committed on the trial of an action. The remedy for the review of such errors is by appeal. (Stannard v. Hubbell, 123 N.Y. 520; Jenkinson v. Harris, 27 Misc. Rep. 714.)

The order should be reversed, with ten dollars costs and the disbursements of this appeal.- The motion for retaxation at Special Term should bé denied and the original taxation allowing disbursements'in favor of the plaintiff restored and the judgment corrected accordingly.

All concurred, except Rumsey, J., not sitting ; Williams, J., concurred in first ground stated in the opinion only.

Order reversed, with ten dollars costs and disbursements. Motion for retaxation ordered by Special Term denied, and the original taxation allowing disbursements to the plaintiff restored and the judgment corrected accordingly.  