
    SUPREME COURT.
    Weston Miller agt. Mary A. Miller, executrix, et al.
    
    
      Costs and disbursements against executors and administrators on reference of claim, — Code of Procedure, section 317 — Code of Civil Procedure, sections 1835, 1836, 3246.
    Where a claim against a decedent’s estate is materially reduced upon a reference under the statute, thus making it plain that payment thereof has not been unreasonably resisted or neglected, neither costs nor disbursements can be recovered by the claimant under Code of Civil Procedure (secs. 1835, 1836).
    The law granting disbursements as a matter of right in cases of this kind is in the Code of Procedure (sec. 317), and section 3246 of the Code of Civil Procedure takes the place of this section of the old Code and does not give disbursements as a matter of right. Disbursements then, like costs, are to be awarded by the court as provided in sections 1835 and 1836, Code of Civil Procedure (R. S., part 2, title 3, chap. 6, sec. 37). They do not belong to the prevailing party in such cases as a matter of right.
    
      Fourth Department, General Term, May, 1884.
    
      Before James C. Smith, P. J.; Hardin and Barker, JJ.
    
    This is an appeal from an order of the special term of the supreme court, made by justice Follett, denying “ disbursements ” incurred upon a reference and trial, under the statute (2 R. S., 88, sec. 36; 7th ed., p. 2299, sec. 36) of a claim rejected by defendants as executors. The claim presented was for $l,900.90 and interest. Plaintiff recovered $321.35. The claim was for work and services rendered by plaintiff for defendants’ testator, from 1863 to 1878, and it was held by the referee that a large portion was barred by the statute of limitation.
    
      George Adee, for appellant:
    I. Section 317, Code Procedure: “ Whenever any claim against a deceased person shall be referred, pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referee and witnesses, and other necessary disbursements to be taxed according to law.” In Linn agt. Claw (14 How. 508, at p. 510), Harris, J., says: “ The provision in the 317th section of the Code, which entitles the successful party to recover his disbursements, cannot, I think, be regarded as affecting the power of the court in proper cases, to award costs as in an action to the prevailing party. “ This provision was only intended to secure the party his disbursements, in all cases, without regard to the exercise of the discretion vested in the court, to grant or withhold costs.” In this case, therefore, the plaintiff is entitled to recover, as matter of legal right, his disbursements.” In Ridley agt. Fisher (24 How., 404, 405), Marvin, P. J., says: “ This provision (of sec. 317, Code) is imperative in favor of the prevailing party,” and at page 408: “The effect of this provision is that now the claimant, plaintiff, will, where the report is in his favor, recover these items of costs without any regard to the fact whether the claim was unreasonably resisted or neglected (Newton agt. Sweet, Ex., 4 How., 134; Van Sickler agt. Graham, 7 How., 208; Avery agt. Adams, 9 How., 349). It will be observed that a distinction is made in section 317, between “ actions ” and references under the statute.” Actions fall within 2 Revised Statutes, 89, section 41 (Code of Civil Pro., secs. 1835, 1836, takes its place; Morgans agt. Skidman, 3 Abb. N. C., 92; Horton agt. Brown, 29 Hun, 654). But the recovery of disbursements by the prevailing party upon a reference under the statute was made imperative (Ridley agt. Fisher, 24 How., 404, supra; Linn agt. Claw, 14 How., 508, supra).
    
    II. Has any law been passed repealing that clause in section 317, Code Procedure, allowing the fees of referees and witnesses and other necessary disbursements ” to the prevailing party? Chapter 417, Laws of 1877, section 4, did not repeal sections 311 to 322 of the Code of Procedure. Chapter 245, page 367, Laws of 1880, section 1: “ The following acts and parts of acts, heretofore passed by the legislature of the .state, are hereby repealed, namely: Fourth, page 369: The act entitled “ An act to simplify and abridge the practice,” &c., called Code of Procedure. Now, in repealing sections 311 to 322, the Code of Procedure (sec. 317) would be repealed if there is no exception or reservation of the same or any part of it. Chapter 245, page 367, Laws of 1880, section 3, page 374: “ The repeal effected by the first section of this act is subject to the following qualifications,” viz.: Subdivision 8, page 375, of section 3; page 374, chapter 245; page 367, Laws 1880, supra: “ It does not effect the right of a prevailing party to recover the fees of referees and witnesses and his other necessary disbursements upon a reference of a claim against a decedent as provided in those portions of the Revised Statutes left unrepealed after this act takes effect.”
    
      III. Plaintiff’s claim was against a decedent, and referred as provided in those portions of the Revised Statutes left unrepealed after this act took effect (3 R. S. [7th ed.], 2299, sec. 36), it having been held imperative under section 317, Code of Procedure, that the prevailing party upon a reference was entitled to the fees of referee and witnesses and his other necessary disbursements. Chapter 245 of 1880 did not change the rights of the prevailing party, and it still remains imperative upon the court to allow such items to plaintiff herein. The plaintiff is the prevailing party. His claim was rejected in toto. He could not sue in justices’ court (Code of Civil Procedure, sec. 2863). He recovered more than fifty dollars. The defendants could have saved themselves from the payment of these disbursements by an offer of judgment under section 738, Code of Civil Procedure. If the plaintiff had not recovered more than was offered, he could not have recovered these disbursements, for he would not have been the prevailing party. The defendants intended to beat the plaintiff out of every dollar or pay these disbursements. They failed in their defense and ought to pay.
    IV. It is not permitted to interpret what has no need of interpretation. To conjecture is to elude (Wattle, book 2, chap. 17, sec. 263; Jackson agt. Lunis, 17 Johns., 475; S. C., 13 id., 504; W. and W. T. Co. agt. People, 9 Barb., 161; People agt. N. Y. C. R. R. Co., 13 N. Y., 7; S. C., 25 Barb., 199). By chapter 245, Laws 1880, the legislature repealed sections 311 to 322, except that portion of section 317, which it declared to remain in full force. This reservation or exception is as broad and in the identical language of the, original section. In Peck agt. Peck (60 How., 206; 8 Abb. N. C., 400) Larremore, J., holds “ that the exception in chapter 245, Laws of 1880 ([3], p. 367 [4], p. 368 of sec. 49, 2 R. S., 146) rendered inoperative section 1761 of the Code of Civil Procedure.” This case is right in point. In Ely agt. Salton (15 N. Y., 595, at p. 598) Denio, C. J., says: “The portion of the amended sections which are merely copied without change are not to he considered as repealed and again enacted, but to have been the law all along, and the new parts or the changed portions (Code of Civil Pro., secs. 1835, 1836) are not to be taken to have been the law at any time prior to the passage of the amended act.” Smith’s Commentaries on Statute and Constitutional Law (p. 711, sec. 577): “ A saving must be of a thing in esse. The nature of a saving is to preserve a former right and not to give or create a new one.” Smith’s Commentaries (supra, p. 712, sec. 578): “A proviso is something engrafted upon a preceding enactment. It was held by all the barons of the exchequer that where the proviso of an act was directly repugnant to the purview of it the proviso should stand and be held a repeal of the purview, because it was said it speaks the last intention of the law-giver. The office of a proviso is not to enlarge or extend the act, or the section of which it is a part, but rather to put a limit and a restraint npon the language which the law-maker has employed ” (In the Matter of Geo. B. Webb (24 How., 247, 249). Consider that clause in section 317, Code of Procedure, allowing disbursements to the prevailing party an entire section by itself. It is a universal rule that where the exception or proviso in a repealing act is as broad, or in the identical words of the act or law repealed, nothing is repealed, and the act or law so excepted or reserved remains in full force and effect.
    V. The case of Daggett agt. Mead (11 Abb. N. C., 116) was, as I have been informed by judge Murray, decided at . the circuit and special term. It was stated that section 317, Code of Procedure, was repealed, and sections 1835, 1836, Code of Civil Procedure, took its place. Nothing was said of the exception or proviso in section 3, subdivision 8 of chapter 245 of Laws of 1880. Judge Follett evidently followed this decision, declining to overrule judge Murray; and as both judges say, the question is one worthy the careful consideration of a higher court, to the end that a uniform practice may be had throughout the entire state, and one rule adopted in the vast number of cases referred under the statute.
    
      Davie & Arbuckle, for respondents:
    I. If the plaintiff is entitled to recover his disbursements, it must be under some provision of law or order of court. Section 317 of the Code of Procedure provided that “ in an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered as in an action by and against the person prosecuted or defending in his own right, but such costs shall be chargeable only upon or collected of the estate, fund or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defense. And this section shall not be construed to allow costs against executors or administrators where they are now exempted therefrom by section forty-one, of title three, chapter six of the second part of the Eevised Statutes; and whenever any claim against a deceased person shall be referred pursuant to the provisions of the Eevised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses, and other necessary disbursements, to be taxed according to law. And the court may, in its discretion, in the cases mentioned in this section, require plaintiff then to give security for costs.” By this section of the old Code it is expressly provided that • the “ prevailing party ” shall recover his disbursements. The Code of Civil Procedure has substituted section 3246 for section 317 of the old Code; section 3246 provides as follows : “ In an action brought by and against án executor or administrator in his representative capacity, or the trustee of an express trust, or a person expressly authorized by statute to sue or be sued, costs must be awarded as in an action by or against a person prosecuting or defending in his own right,except as otherwise prescribed in sections 1835 and 1836 of this act; but they are exclusively chargeable upon and collectible from the estate fund or person represented, unless the court directs them to be paid by the party personally for mismanagement or bad faith in the prosecution or defense of the action.” The balance of section 317 of the old Code is therefore repealed ; and it was only under the repealed portion that the “prevailing party” was entitled to his disbursements. By section 3246 of the Code of Civil Procedure it is provided that in an action brought by or against an executor or administrator in his representative capacity, costs must be awarded as in an action by or against a person prosecuting or defending in his own right except as otherwise prescribed in sections 1835 and 1838 of this act. Section 1835 provides as follows: “ Where a judgment for a sum of money only is rendered against an executor or administrator in an action brought against him in his representative capacity, costs shall not be awarded against him except as prescribed in the next section.” Section 1836 provides: “Where it appears in a case specified in the last section 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, or that the defendant refused to refer the claim as prescribed by law, the court may award costs against the executor or administrator, to be collected either out of his individual property or out of the property of the decedent, as the court directs, having reference to the facts which appeared upon the trial. Where the action is brought in the supreme court or in a superior city court, the facts must be certified by the judge or referee before whom the trial took place.” By section 3256 of the Code of Civil Procedure the party to whom costs are awarded is entitled under such an award to his disbursements. It follows, therefore, that unless a party is entitled to" recover costs in an action, that he is not entitled to recover disbursements. The last clause of section 317 of the old Code having been repealed, no section of the Code of Civil Procedure provides that the “ prevailing party ” can recover his disbursements unless he is entitled to recover his costs.
    II. The costs and disbursements in a case of this kind are in the discretion of the court, and can only be awarded to the party by order of the court. In this case his honor, justice Follett, has denied costs and disbursements to either party, which decision was entirely in his discretion and will not be reviewed by this court. In the case of Daggett agt. Meade (11 Abbott's N. C., 116), his honor, justice Mubbay, holds that under sections 1835 and 1836 of the Code of Civil Procedure, the right to recover disbursements depends upon the allowance of costs.
    III. Section 3333 of Code of Civil Procedure is almost identical with section 2 of old Code and defines what an action is. Section 3334 of Code of Civil Procedure is almost identical with section 3 of old Code and defines what a special proceeding is. The case of Roe agt. Boyle (81 N. Y., 305), decides that “ a proceeding by reference under the statute to determine and enforce a disputed claim against an estate is not an action but a special proceeding ” (See, also, Mowry agt. Peet, 88 N. Y., 453). Section 3240, Code of Civil Procedure, provides that costs in a special proceeding are in the discretion of the court.
    IY. We have not overlooked the repealing act. Chapter 245, Laws 1880, section 3, subdivision 8, provides that “it does not affect the right of a prevailing party to recover the fees of referee and witnesses and his other necessary disbursements upon the reference of a claim against a decedent as provided in those portions of the Revised Statutes left unrepealed after this act takes effect.” But this exception has no application to this case as there is not now and never was a section of the Revised Statutes providing that the prevailing party should recover his disbursements as a matter of right. The section of the Revised Statutes now in force is section 37 of part 2, title 3, chapter 6, and was first enacted in the Revised Statutes of 1828 (Sse vol. 2 of that edition, page 
      89), and since that time has remained unchanged (See 7th ed., vol. 3, p. 2300). This section (37) provides that the court may confirm the report of the referees, “ and adjudge costs as in actions against executors.” Under this section it is well settled, prior to the old Code of 1848, that in proceedings of this kind the costs as well as the disbursements were in the discretion of the court, and also that the term costs included disbursements (Robert agt. Ditmas, 7 Wend., 522; Newton agt. Sweet, 4 How., 134). By the Laws of 1851, section 317 of the Code of 1848 — old Code — was amended by adding the clause * * * “ the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements, to be taxed according to law,” and this is the only provision of law by which the “ prevailing party,” as a matter of right, has ever been entitled to his disbursements. And all the decisions awarding to the prevailing party his disbursements have been based on this section of the old Code (Newton agt. Sweet, 4 How., 134; Radley agt. Fisher, 24 How., 404; Munson agt. Howard, 12 Abb., 77). The Code of Civil Procedure has not retained this provision. The Revised Statutes never contained it. ’The section of the Revised Statutes unrepealed leaves the question of costs, including disbursements, in the discretion of the court.
   By the Court.

— The question in this case has, we think, already been decided in this court. But as we are not able at this time to refer to that decision, we will briefly state our reasons for affirming the order.

The clause in the repealing act (chap. 245, Laws 1880, sec. 3, subd. 8) does not affect the question because it has reference simply to provisions of the Revised Statutes.

The law granting disbursements as a matter of right is in the Code of Procedure (sec. 317).

The Code of Civil Procedure (sec. 3246) takes the place of section 317 of the old Code, and does not give disbursements as a matter of right.

Disbursements then, like costs, are to be awarded by the court, as provided in sections 1835 and 1836, Code of Civil Procedure (R. S., part 2, tit. 3, chap. 6, sec. 37). They do not belong to the prevailing party in such cases as a matter of right.

Order affirmed, with ten dollars costs and printing disbursements.  