
    Minnie Megrue, Respondent, v. Enoch G. Megrue, as Executor, etc., of Joseph R. Megrue, Deceased, Appellant.
    First Department,
    December 31, 1913.
    Costs — decedent’s estate — stipulation as to disbursements on reference of rejected claim against decedent, construed—right to tax • disbursements.
    Where on the reference of a rejected claim for moneys owing by a decedent, the parties enter into a stipulation fixing referee’s and stenographer’s fees and providing that they shall “ be taxed as a disbursement in the action,” and the referee finds that the plaintiff ?a not entitled to costs, the plaintiff cannot tax such fees as disbursements, because section 3356 of the Code of Civil Procedure makes the allowance of disbursements dependent upon the recovery of costs.
    Such a stipulation should be construed to mean that the party ultimately liable for costs shall also be liable for the disbursements as fixed in the stipulation, and that the right to tax disbursements follows the right to costs as an incident thereof.
    Clarke, J., dissented, with memorandum.
    Appeal by the defendant, Enoch G. Megrue, as executor, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of July, 1913, denying his motion to vacate and set aside the taxation of plaintiff’s costs herein.
    
      
      Treadwell Cleveland, for the appellant.
    
      Carl A. Hansmann, for the respondent.
   Hotchkiss, J.:

The action and the reference arose on a rejected claim for moneys owing by the decedent, amounting- to $7,408.21. At the beginning of the reference the parties entered into a stipulation fixing the referee’s fees at $10 an hour, and $10 for each adjournment of which he was not duly notified, and also for the stenographer’s fees; the stipulation ending with the phrase, “be taxed as a disbursement in the action.” Technically, these words apply only to the stenographer’s fees, but the case has been submitted on the assumption that they apply both to referee’s and stenographer’s fees. The referee reduced plaintiff’s claims to $539.30, and found that they had not been unreasonably resisted, and that plaintiff was not entitled to costs.

I think the order appealed from was wrong. Formerly the Code of Procedure (§ 317, as amd. by Laws of 1851, chap. 479, and Laws of 1852, chap. 392; rep. by Laws of 1909, chap. 65) provided that, on reference of a claim against a decedent’s estate, “the prevailing party ” shall be entitled to referee’s and witness’ fees and other necessary disbursements. The section of the Code of Civil Procedure now allowing disbursements (§ 3256) makes such allowance dependent upon the recovery of costs, as in civil actions generally. The section reads: “A party to whom costs are awarded in an action is entitled ” to his necessary, disbursements. The section does not cover referee’s fees beyond ten dollars a day (Code Civ. Proc. § 3296), nor stenographer’s fees.

The respondent argues that the intention of the stipulation was to cast upon the unsuccessful party the burden of all fees and disbursements that might be taxed under the stipulation. I do not so construe it. I think it meant what similar stipulations have always been taken to mean, namely, that the party ultimately liable for costs shall also be liable for the disbursements as fixed in the stipulation, and that the right to tax disbursements follows the right to costs as an incident thereof. To construe this stipulation as entitling the plaintiff to his disbursements would put the executor in the position of having conceded away a statutory immunity granted for the protection of the estate, an intent wholly unjustified by any words to be found in the stipulation.

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the taxation granted.

Ingraham, P. J., Scott and Dowling, JJ., concurred; Clarke, J., dissented.

Clarke, J.:

I dissent. It seems clear that by the stipulation the disbursements referred to, namely, the referee’s and stenographer’s fees, were to be taxed. Of course, .if they were to be taxed, they were to be taxed in favor of the prevailing party. The fact that costs were not allowed to the prevailing party does not affect the question, because the stipulation was that said fees were to “be taxed as a disbursement,” and not “as the costs of the case.” The stipulation should be lived up to. I vote to affirm the order appealed from.

Order reversed, with ten dollars costs and disbursements, and motion granted. 
      
       See Nichols v. Moloughney (85 App. Div. 1).— [Rep.
     