
    James J. Smith vs. Samuel B. Randall, executor, &c.
    Where, in an action against an executor, there has been a reference, and a report in favor of the plaintiff, and a certificate by the referee, showing the presentment of the- demand to the executor, an offer to refer, refusal by executor to refer, and a rejection of the claim, before suit brought, the proper practice is for the plaintiff to apply to the court for an order allowing costs.
    The referee has no power to pass upon that question.
    MOTION for an order allowing costs against an executor, to be paid out of the estate.
    There has been a reference, and a report in favor of the plaintiff, and a. certificate by the referee, showing the presentment of the demand to the executor, an offer to refer, and that the executor refused to refer, and rejected the claim. And thereupon this suit was brought.
    
      
      C. D. Prescott, for the motion.
    
      S. S. Morgan, opposed.
    [Herkimer Special Term,
    January, 1872.
   Hardih, J.

The defendant opposes this motion, on the ground that no order was necessary to enable, the plaintiff to recover costs.

This question has been discussed in several cases ; and it is now quite well settled that an application must be made to the court, and that the referee has no power to pass upon such question. (9 Barb., 388. 12 How. Pr., 301, 353. 14 id., 481. 23 id., 137. 4 Ab., N.S., 399.)

I am aware that some cases are to be found, construing section 317 of the Code in such a manner as to render a motion necessary only in cases where it is sought to charge the costs upon the executor &c. personally; but more recent cases' are to the effect that the correct practice is to move for an order, in cases situated like this one. And following these cases, it must be considered that the plaintiff has followed the correct practice ; and his motion must be granted. (Howe v. Lloyd, 2 Lans., 335. Pish v. Crane, 9 Ab., N.S., 252.)

This motion is therefore granted; but as the question has recently been opeh to- discussion, no costs of motion are allowed.'

Ordered accordingly.

Hardin, J.]  