
    Devere F. Lamphere, Appellant, v. Alice D. Lamphere, as Administratrix with the Will Annexed of Burr W. Lamphere, Deceased, Respondent.
    
      Costs—an executor is entitled thereto, on a reference of a disputed claim where the recovery is less than fifty dollars —such a claim, how enfoi'ced.
    
    The holder of a disputed claim for money against an estate which has been rejected and referred pursuant to statute, must recover more than fifty dollars in order to be entitled to costs; if he recovers less than that sum, the defending executor or administrator is entitled to costs under section 3229 of the Code of Civil Procedure.
    
      Semble, that the proper course of the holder of such a claim is to decline to refer it and bring an action thereon in a Justice’s Court.
    Kellogg, J., dissented.
    Appeal by the plaintiff, Devere F. Lamphere, from so much of a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk,of the county of Madison on the lltli day of December, 1899, upon the report of a referee, as awards costs against the plaintiff and in favor of the defendant, with notice of an intention to bring up for review an intermediate order entered in the office of the clerk of the county of Madison on the 10th day of February, 1900, denying the plaintiff’s motion for a retaxation of costs.
    The plaintiff in this action presented a claim of forty-eight dollars to the defendant, as administratrix, etc., against the estate of her testator, and she duly rejected the same. It was thereupon referred under the statute, and the referee made his report, wherein he finds that the plaintiff is entitled to recover against the estate the sum of forty-six dollars and fifty cents, and that the defendant is entitled to recover costs of the action against the plaintiff. He ordered judgment accordingly, and directed that the costs as taxed be set off against the plaintiff’s claim.
    The costs were taxed by the clerk at sixty-seven dollars, and judgment was entered pursuant to such direction, resulting in a recovery of twenty dollars and fifty cents in favor of the defendant against the plaintiff. A motion was made at Special Term for an order setting aside such taxation and for a retaxation of the costs, which was denied; and from such order of denial, and from so much of the judgment as awarded costs to the defendant, this appeal is. taken.
    
      E. S. More, for the appellant.
    
      J. J. L. Baker and C. A. Hitchcock, for the respondent.
   Parker, P. J.:

The question as to the right of the defendant to recover costs against the. plaintiff is, I think, properly presented by the appeal .taken from the judgment entered herein, and we are, therefore,, required to pass upon that subject.

By the amendment in 1893 to section 2718 of the Code of Civil Procedure this proceeding must be deemed an action in the Supreme Court, and the plaintiff stands in the position of one in whose favor a final judgment in an action has been rendered, and the referee had all the powers concerning costs that are given to a referee in section 1022. (Hustis v. Aldridge, 144 N. Y. 508; Henning v. Miller, 83 Hun, 406; Fisher v. Bennett, 21 Misc. Rep. 178; Adams v. Olin, 78 Hun, 309.)

By section 3228 the plaintiff is entitled to costs of course upon the rendering of a final judgment in his fav.or in either of the actions specified in the several subdivisions of that section. The 3d subdivision specifies as one of the actions in which he is entitled to-costs as of course the' action specified in the fifth subdivision of section 2863 of the Code. That subdivision provides that, a justice of the peace shall have no jurisdiction where the action is brought against an executor or .administrator as such, except where the amount of the claim is less than the sum of fifty dollars and the claim has been duly presented to the'executor or administrator and rejected by him.” That is to say, under the provisions of subdivision' 3 of section 3228 in an action against an executor or "administrator, the plaintiff, when final judgment is rendered in his favor is entitled to costs, as of course, unless the claim is less than fifty dollars and has been duly presented and rejected. By subdivision 4 of such section 3228 it is provided that in an action, other than one specified in the foregoing subdivisions of this section, in which the complaint demands judgment for a sum of money only, the plaint-tiff is entitled to costs of course when final judgment is rendered in his favor. But the plaintiff is not entitled to costs under that subdivision unless he recovers the sum of fifty dollars or more.

By section 3229 it is provided that in an action specified in the last section (viz., 3228) the defendant, upon the rendering of final judgment, is entitled to costs of course unless the'plaintiff is entitled to costs as therein prescribed.

From these provisions it is claimed on the part of the defendant that she is entitled to costs in this action. She argues that the plaintiff’s claim being less than fifty dollars, he was not-entitled under either of the subdivisions of section 3228 to costs, and that, therefore, inasmuch as the plaintiff is not given costs by that section the defendant has her costs of course under the provisions of section 3229.

The foregoing provisions of section 3228 awarding costs to a plaintiff are, however, when the defendant is an executor or administrator, limited by the provisions of sections 1835 and 1836 wherein it is provided that costs shall not be awarded against him in an action brought against him in his representative capacity, unless it appears that when the claim was presented to him by the plaintiff payment thereof was unreasonably'resisted or neglected. If such facts appear the court may render costs against the estate, or the executor, etc., personally. And if the action is in the Supreme Court, these facts must be certified to by the judge or referee before whom the action is tried.

Section 3246 provides 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 jjrescribed in sections 1835 and 1836 of this act.” And under this section it has been held that if the executor defeats the plaintiff’s claim he is entitled to costs against him as a matter of right. (Adams v. Olin, 78 Hun, 309.)

Reading these several sections together, I reach the conclusion that the defendant’s construction is the correct one.

The scheme of the statute seems to be that the liability of a party to pay costs to an executor or administrator shall be fixed by the same provisions which control costs as between parties litigating in their own right, but that costs shall not be recovered against executors or administrators unless the unreasonable rejection of the claim referred to in sections 1835 and 1836 is made to appear.

In the case at bar plaintiff’s action is not such, an one as. entitled him to costs, as of course, under either of the subdivisions of section 3228. By the clear provisions of section 3229, therefore, the defendant was entitled to recover them.

It is true that if plaintiff had recovered more than fifty dollars he could not have had costs against defendant because-of the provisions of sections 1835 and 1836, but nevertheless he would in that event have been entitled to them so far as the provisions of section 3228 were concerned, and hence. no costs against him could have been allowed..

This construction works no injustice to a party holding a claim, .of. less than fifty dollars against a deceased party. He may, within the prescribed time, present such claim to the executor or administrator, and if rejected he may at once sue it in a Justice’s Court. If the executor offer to refer, the claimant may still decline the reference and bring his action before the justice. If, however, he accept the reference, he will have elected to prosecute his claim in an action in the- Supreme Court, and in that event he must pay costs to his opponent. In this respect he stands in no different position from that which any party occupies who seeks to enforce by judgment in a court of record a mere claim for money which is less in amount than fifty dollars. In such an effort, whether it be against an executor, or a defendant in his own right, the plaintiff must pay the costs. Had this plaintiff brought this action in a Justice’s Court/ no costs would have been rendered against him, and he would have been entitled to recover costs, except so far as he would have been prevented by sections 1835 and 1836. But he chose the method of a reference which took him into the Supreme Court,.and hence he must be controlled by the rules governing costs in that court.

The plaintiff claims that his action is one mentioned in subdivision 3 of section 3228, because, although less than fifty dollars, it has never been rejected by the defendant. If this claim were correct he would have been entitled, as of course, to costs under section 3228, and the defendant would not have been entitled to them. But the claim is not sustained by the record. The written rejection therein appearing is clearly sufficient and is all that the statute requires. ■

I am of the opinion that the decision of the referee was correct, and that the clerk properly taxed the costs as therein directed.

The judgment and the order should, therefore, be affirmed, with costs.

All concurred, except Kellogg, J., dissenting.

Judgment and order affirmed.  