
    (38 Misc. Rep. 219.)
    In re COONLEY et al.
    (Surrogate’s Court, Greene County.
    June, 1902.)
    Administration—Disputed Claims—Costs.
    Where disputed claims are submitted to a surrogate for determination on a judicial settlement, as provided by Code Civ. Proc. § 1822, the allowance or disallowance of costs to the claimant is in the surrogate’s discretion, limited only by Code Civ. Proc. § 2561.
    In the matter of the judicial settlement of Platt Coonley and Jane Maria Reed, administrators of William K. Reed, deceased. Decree of distribution entered.
    Osborn & Bloodgood, for administrators.
    Alberti Baker, for William H. Shufelt.
    Clarence E. Bloodgood, for William W. Cummings.
    Charles E. Nichols, for Stephen P. Hallock.
   TALLMADGE, S.

William H. Shufelt, William W. Cummings, .and Stephen P. Hallock severally presented claims to the administrators herein, which were rejected by the administrators, and a written consent was filed in the surrogate’s office by each of said claimants and by said administrators that said claims might be heard and determined by the surrogate of Greene county on the judicial settlement of the account of said administrators. On such judicial settlement each of said, claims was established and allowed by the surrogate, but each claim was reduced, and allowed for a smaller sum than the claim as presented and rejected. The question now arising for my determination is whether the claimants are entitled tO' an allowance for costs in this proceeding.

Prior to the amendment of section 1822 of the Code of Civil Procedure, permitting rejected claims to be heard before a surrogate on judicial settlement of the account of an executor or administrator when consents were filed to that effect, a claimant had two remedies to enforce a rejected claim,—one by action, and the other by a reference under section 2718 of the Code. In either case the costs were ■regulated by sections 1835 and 1836 of the Code. These sections do not refer to or regulate the costs in a special proceeding in surrogate’s court. Section 2561 and 2562 govern costs in such proceedings. Section 1822, as amended in 1895, creates a new remedy or method of determining disputed or rejected claims; and while section 1836, which refers to costs in actions, was at the same time amended and made to embrace the amendment of section 1822, no reference was made in the amendment as to costs in proceedings in surrogates’ courts, and section 2561 was left as it was before the amendment. Under section 1822, the claims referred to in that section can only be tried before the surrogate on the judicial settlement of an account of an executor or administrator; and it is thus made a part of, or an incident to, the judicial settlement. Such proceeding is analogous to a proceeding to establish an individual claim of an executor or administrator, which can only be done on judicial settlement, as provided by section 2731.

My attention has been called to the case of Benjamin v. Ver Nooy, 168 N. Y. 582, 61 N. E. 971. In that case the court said:

“The executor is entitled to one lawful trial, and to exemption from costs, saving the excepted cases, until he has had one lawful trial.”

This language was used on an appeal from a judgment obtained in an action in the supreme court, and the decision was based on sections 1835 and 1836 of the Code. I cannot, therefore, understand how the language used by the court in that case can refer to a proceeding in surrogate’s court, where the costs are regulated by a different section of the Code. The only reported case where this question has been passed upon, to which my attention has been called, is In re Ingraham’s Estate, 35 Misc. Rep. 577, 72 N. Y. Supp. 62, decided by Davie, S., who holds that:

“In all cases where disputed claims against an estate are submitted to the surrogate for determination on judicial settlement pursuant to the provisions of section 1822 of the Code, the allowance or disallowance of costs to the claimant is a matter of discretion with the surrogate. Such discretion must be exercised within the limits, as to amount, provided for in section 2561. That, in the exercise of such discretion, the surrogate should be guided and controlled by the same principles which are applicable to the allowance or disallowance of costs in actions at law against estates.”

I do not agree with the learned surrogate that, in the exercise of his discretion, the surrogate should be guided and controlled by the same principles which are applicable to the allowance or disallowance of costs in actions at law against estates, nor do I agree with him in his reasoning where he says:

“The reasons which are operative in determining the right to costs in an action at law against an estate apply equally as well to a claim determined on judicial settlement by the surrogate.”

If such reasoning and holding are correct, the surrogate is left without any discretion in the matter. If this proceeding is controlled by sections 1835 and 1836 of the Code, the surrogate has no discretion in the matter, excepting, perhaps, to grant or withhold the certificate as to costs as provided in those sections. If those sections do not apply to such a proceeding, they should not be taken into consideration, and the surrogate should grant or withhold costs as he is prompted by the facts in each particular case. It might be urged that the law governing costs ought to' be the same in a special proceeding in a surrogate’s court that it is in an action. Our answer to this is that the legislature has seen fit to make and preserve a distinction, for what seems to me to be a wise purpose. Prior to the amendment of section 1822, judicial settlements were often delayed for months, and sometimes years, to await the result of an action on a disputed claim. This amendment provides for a simple and speedy remedy-for the determination of disputed claims, and, as soon as an executor or administrator is ready to file his account and have the same passed upon by the surrogate, all claims, where consents have been filed, can be determined in the same proceeding at a time when. all parties interested in the estate are permitted to be present, and in-such a proceeding it is in the discretion of the surrogate to allow the limited amount of costs prescribed by section 2561 of the Code. If a creditor refuses to file the consent, and elects to bring an action on the claim, he must do so without the right to recover costs; and if the claimant files his consent, and the executor or - administrator refuses to file his consent, that the claim be heard before the surrogate within the time prescribed, costs upon a recovery may be allowed in an action. I am unwilling to hold that a -surrogate’s court can be flooded with claims carelessly rejected by executors or administrators, and that claimants can be compelled to appear in surrogate’s court to prove a just claim at their own expense, until there is some law clearly requiring such determination.

The parties, having consented in this case to have their claims heard and decided by the surrogate on the judicial settlement of the account of the administrators, have by reason of such agreements or stipulations brought themselves under the provisions of section 2561 as to- costs; and I am of the opinion that in all cases where disputed claims against an estate are submitted to the surrogate for determination on judicial settlement, pursuant to the provisions of section 1822 of the Code, the allowance or disallowance of costs to the claimant is in the discretion of the surrogate, limited only by section 2561, and that William H. Shufelt should be allowed for his costs and. disbursements the sum of $30, William W. Cummings should be allowed for his costs and disbursements the sum of $25, and Stephen P. Hallock should be allowed for his costs and disbursements the sum of $20.

Decreed accordingly.  