
    Elbert W. Hauxhurst, Respondent, v. Thomas J. Ritch, Jr., as Administrator, etc., Appellant.
    The allowance of costs, upon a reference under the statute of a disputed claim against an estate, is within the discretion of the court below, and is not reviewable here.
    (Submitted December 19, 1889;
    decided January 14, 1890.)
    
      Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made January 28, 1889, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.
    This was a reference, under the statute, of a disputed claim against the estate of Nathaniel O. H'auxhurst, deceased. The ■claim was upon a promissory note executed by decedent. The defense was that the note was given without consideration.
    The following is the mem. of opinion:
    “ The first question raised on this appeal is wholly one of fact. The claim of the plaintiff rested upon a note given by the deceased. The defense was that the note was without -consideration. The referee found to the contrary, and while the facts are susceptible of some criticism and open to more ■dispute, it cannot be said that there was no evidence to sustain the finding.
    “ Exceptions were taken to the ruling of the referee in admitting certain questions asked of the plaintiff. These were whether any part of the note had been paid, and whether he was the holder of the note. It is a sufficient answer to the objection, that the questions were totally immaterial and entirely superfluous. If they should be stricken wholly from the case, the non-payment of the note would stand presumed till proof was given to the contrary, and the production of the note made him prima facie its holder and owner. But in answering the last question, the witness went beyond its scope and added ‘ it has been in my possession since April 1, 1878.’ The case adds, ‘ This last taken subject to same objection, ruling and exception.’ The meaning seems to be that, while the latter part of the answer was not responsive to the inquiry which drew it out, yet the objections to that inquiry should apply to the irresponsive answer. Those were that the question was ‘ leading, not necessary. to the prima facie showing, and presumption of law makes it unnecessary.’ The objection here argued was none of those, but one under section 829 of the Code, which was not taken either to the question itself or to any part of the answer. That objection was taken to the inquiry as to non-payment, but to that only. Eo other objection is argued, except to the allowance of costs which were in the discretion of the court and not subject to our review. (Denise v. Denise, 110 E. Y. 568.)
    “ The judgment should be affirmed with costs.”
    
      George 61 Brainerd for appellant.
    . E. G. Duvall, Jr., for respondent.
   Finch, J.

read for affirmance.

All concur.

Judgment affirmed.  