
    Bailey et al. v. Schmidt et al., Administratrices of Elizabeth Wetterau.
    
      (Supreme Court, Chambers, New York County,
    
    
      Filed November 12, 1888.)
    
    1. Costs—Claim against administrator beeekred by consent—When CLAIMANT NOT ENTITLED TO COSTS.
    The claimant presented a claim for professional services to tlie defendant against the estate of the decedent, amounting to the sum of $770. The claim being disputed was, by consent, referred, and the referee found for plaintiffs in the sum of $463. There was no certificate in this case that the plaintiff was entitled to costs other than such as might he inferred from the report itself. Held, that the plaintiff was not entitled to costs on the facts found in this case; that the claim was not unreasonably resisted or neglected when a reduction of nearly three sevenths in amount was obtained; that they were not entitled to disbursements.
    2. Same—Disbursements not allowed.
    Where a disputed claim against the estate of the deceased person is referred, and a report in the claimant’s favor is confirmed, the claimant is not entitled, as a matter of right, to the disbursements necessarily made by him, but they, as well as the costs, are to be awarded or withheld by the court in its discretion. Following Miller v. Miller, 32 Hun, 481.
   Lawrence, J.

The plaintiffs presented a claim for professional services to the defendants, against the estate of the decedent, amounting to the sum ¡of $770.88. The claim being disputed, was, by consent, referred, and the referee found for the plaintiffs in the sum of $463, thus very materially reducing the plaintiffs’ claim.

By his report it appears that $450 of the amount allowed was for professional services, and that thirteen dollars, balance thereof, was for disbursements incurred by the plaintiffs. The referee reports that the claimants are entitled to judgment for the amount reported besides the costs of the action, and motion is now made for an order confirming the said report for the costs of the action and an allowance in addition to said costs.

Unless the claim presented to the defendants was unreasonably resisted or neglected, no costs can be allowed to the plaintiff. See Code Civ. Pro., § 1836.

And where the action is brought in this court or in a superior city court, the facts constituting the right to such costs must be certified by the referee before whom the trial took place. There is no certificate in this case other than such as may be inferred or spelled out from the report itself. I do not think that the plaintiffs are entitled to costs on the facts found in this case. The $307.88 was obtained on a claim of $770.88.

In Pursell v. Fry (19 Hun, 595), a very similar case, where costs had been allowed at the special term on an appeal from an order confirming the referee’s report, the court held that the costs must be stricken out.

In Miller v. Miller (32 Hun, 481), it was held that where a disputed claim against the estate of a deceased person is referred, and a report in the claimant’s favor is confirmed, the claimant is not entitled, as a matter of right, to the disbursements necessarily made by him, but they, as well as. the costs, are to be awarded or withheld by the court in its. discretion. See also Morgan v. Skidmore, 3 Abb. N. C., 96; Daggett v. Mead, 11 Abb. N. C., 117; Harrison v. Ayers, 18 Hun, 336.

1 am, therefore, of the opinion on the authorities cited, that the plaintiffs in this case are not entitled to costs. Are they entitled to disbursements incurred upon the reference?

It was held in Miller v. Miller, as we have seen above, that the disbursements necessarily made by the claimant are as much in the discretion of the court as the costs. That was a general term decision and should be followed by me unless some distinction between it and the case at bar can be shown. It does not appear in this case that the defendants refused to pay any part of the plaintiff’s claim. It was successfully resisted to the extent of nearly three-sevenths in amount. It would seem, then, that they are not entitled to disbursements.

I find, however, upon referring to the testimony in the •case, that there was a stipulation that each side should pay one-half of the stenographer’s fees. By that stipulation the defendants must be bound, and for those disbursements, if paid by them, the plaintiffs are entitled to judgment in addition to the amount reported by the referee.

The order to be entered herein will be settled on notice.  