
    In the Matter of the Accounting of Arthur V. Jennings, as Administrator of the Estate of Walter F. Jennings, Deceased.
    Surrogate’s Court, Kings County,
    June 28, 1956.
    
      Anthony B. Cataldo for administrator.
    
      Vigdor & Locker for Josephine Jennings and another.
   Maximilian Moss, S.

This is an application by the respondent to tax a bill of costs on the affirmance by the Court of Appeals of a determination of the Appellate Division of the Supreme Court which affirmed a decree of this court.

By an order dated November 17, 1955 the Court of Appeals granted the appellants leave to prosecute their appeal as poor persons. On the affirmance in the Appellate Division of the decree made by this court, a decree was entered herein on October 20, 1955 which directed the appellants to pay the amount of the bill of costs allowed to the respondent on August 4,, 1955. The appeal in the Appellate Division was not prosecuted as poor persons. The proposed bill seeks an allowance of costs on the appeal to the Court of Appeals and costs and allowances pursuant to section 278 of the Surrogate’s Court Act for contest of the appeals to the Appellate Division and to the Court of Appeals. Section 1493 of the Civil Practice Act provides that no costs may be awarded against persons authorized to proceed as poor persons. Where persons in forma pauperis are authorized to initiate proceedings the statute protects them from the expenses of the litigation. (Weltman v. Posenecker, 19 Misc. 592, 593; Wilson v. Metropolitan Life Ins. Co., 167 Misc. 853, judgment revd. and order affd., 168 Misc. 125; Stevenson v. Guardian Life Ins. Co. of America, 175 Misc. 823, 825.) This court therefore cannot make allowances of costs for the proceeding in the Court of Appeals. The proposed bill of costs seeks now in effect to retax the prior bill of costs of August 4, 1955 after the entry of a decree based thereon. This likewise cannot be allowed.

The attention of counsel is again directed to the decision of this court of August 4, 1955 relative to allowances to be made herein. The court’s policy with respect thereto will not be modified. This proposed bill of costs is therefore denied in all respects.  