
    NOYES v. THE CHILDREN'S AID SOCIETY.
    
      N. Y. Court of Appeals;
    
    September, 1877.
    [Affirming, but overruling in part, 10 Hun, 389.
    Costs.—Allowances.—Surrogates’ Courts.—Appeal.
    The surrogate of the city and county of New York may award allowances in his discretion to counsel, in lieu of costs; and may do so-in favor of and against those who, in his judgment, ought to receive or be charged with costs, whether successful or unsuccessful in the litigation.
    
      It seems, that in civil actions an allowance can be awarded only to the-successful party. 
    
    
      The supreme court at general term, on appeal from a surrogate, may review the discretion exercised by him in granting allowances, and may reverse or reduce his awards.
    If the appellant, in an appeal to the court of appeals, relies upon the objection that the order appealed from was made on the ground of want of power in an inferior court, it must so appear from the record. That it so appears in the opinion is not sufficient.
    
    The court of appeals will not reverse an order on the question of allowances—for it is one resting in the discretion of the court below, 
    
    Appeal by defendants from an order of the general term of the supreme court reversing an order of the ■surrogate of the county of New York, granting allowance to counsel for defendants.
    
      The plaintiffs, Mary E. Noyes and James Love-ridge, executors of the last will and testament of Eliza Hearsey, offered said will, dated July 11, 1874, to the surrogate.of the-county of New York for probate. The Children’s Aid Society, and St. Luke’s Home, legatees under a former will, filed objections thereto. On the trial a large amount of testimony was taken, and the surrogate admitted the will to probate oh December 30, 1875. Counsel for the unsuccessful contestants applied for allowances, and ah order was made granting to the proctors for the Children’s Aid Society an allowance of $2,500 and $764.65 disbursements, and to-the proctor for St. Luke’s Home, $750. From this order Mary E. Noyes, executrix, and the principal legatee, and James Loveridge, executor, appealed to-the general term of the supreme court, which reversed the order of the surrogate. See Noyes v. The Children’s Aid Soc., 10 Hun, 389. From that decision The Children’s Aid Society and St. Luke’s Home appealed to this court.
    
      H. L. Clinton and D. R. Jacques, for appellants.
    
      R. W. De Forest, for respondent.
    
      
       This point does not appear to have received much consideration,, and it may not have been intended to be passed on by the court. Under the amendments to the code made since the case of Downing v. Marshall arose, it has been held at special term that in equity causes-allowances may, in a proper case, be granted to both sides, not exceeding $3,000 in the aggregate on each side.
      The construction of the statute upon which this practice proceeds,, is this:
      “In addition to these allowances [that is to say, to the taxable-costs], there shall be allowed to the plaintiff\ upon the recovery of judgment by him ” in certain actions specified, a percentage on the recovery; and half the same rates in case of settlement without formal recovery. Code of Pro. % 308. This gives a right only to a successful plaintiff.
      
      “In difficult and extraordinary cases where a defense has been interposed, or in such cases where a trial has been had, and in actions or proceedings for the partition of real estate, the court may also, in its-discretion, make a further allowance to any party, not exceeding five per cent, upon the amount of recovery or claims or subject-matter involved.” Id. § 309, middle clause. This, without the wmrds “to any party,” might be construed as permitting merely a further allowance to the party already provided for by section 308, viz.: a successful plaintiff. But under the clause as it stands, extending “to any party,” the practice is constant of making allowances to a successful defendant, on dismissal -of an action (see Moulton v. Beecher, 1 Abb. New Cas. 193, 345, and cases cited); and the - allowance to a party is not neccessarily computed upon his own claim, but may be computed ■on that of his adversary.
      “ But in no action whatever shall an allowance of more than $2,000 be made to any party, or to all the parties, if more than one on either side.” That is to say, no plaintiff, and no number of co-plaintiffs, can receive more than $2,000 in the aggregate; and no defendant, and no number of co-defendants, can receive in the aggregate more than that sum; and within those limits,—viz., $2,000 on each side,—the court may grant to any party, allowances in difficult and extraordinary cases, within the statute. Allowances on both sides have been rarely granted •except in cases involving the principle of ‘1 trustees’ costs; ” and in these cases the power is in principle the same as that possessed by chancery, and its exercise has been guided by the same equitable considerations. See, for those considerations, Atty.-Gen. v. Moore, 19 N. J. Eg. (4 C. E. Green) 503; Curteis v. Candler, 6 Mad. 123; Turner v. Frampton, 2 Coll. 336; Trotter v. Blocker, 15 Ala. (6 Port.) 269; Jones v. Stockett, 2 Bland, 409, 417; Angier v. Stannard, 3 M. & K. 566; Goodson ®. Ellison, 3 Buss. 583; Westcott v. Culliford, 3 Hare, 274; Campbell v. Horne, 1 Y. & C. Ch. Ca. 664; Boreham v. Bignall, 8 Hare, 134; Knight v. Martin, 1 R. & M. 70; S. C., Tamil. 237; and cases cited in 3 U.S. Dig. First Ser. “Costs,” 17.
      Compare, however, with this view, the reasoning to the contrary in 10 Hun, 289.
    
    
      
       Compare Martin ®. Hicks, 1 Alb. Hew Gas. 342, and cases cited.
    
    
      
       But that abuse of discretion may be reviewed, see Forrest ®. Forrest, 35 N. Y. 501.
    
   By the Court.—Folger, J.

No doubt the surrogate’s court must find its authority to give costs or make an allowance in the nature thereof in some statute. The Devised Statutes (2 R. S. 333, § 10) give the power to award costs; and chapter 359, section 9, of the Laws of 1870 (p. 828), gives the power to make an allowance.

There are two phrases in the latter section which affect the power there given—one is, “in lien of costs,” which restricts the allowance of a gross sum to the cases in which, under the Revised Statutes, costs, according to a fee-bill, might have been awarded. The other is, according to the “manner as are (sic) now prescribed by the Code of Procedure in civil actions.” The last quoted phrase does not grant a power any larger than that given by the Revised Statutes, so far as the occasion for giving allowances to both parties, or for the benefit of both parties, is concerned. The surrogate’s court, in giving allowances under the act of 1870, was confined to the manner (i. e., the way of managing (see Richardson's Dictionary, “Manner”) laid down in sections 308 and 300 of the Code. Neither of them provide for an allowance to any party but the one which prevails (Downing v. Marshall, 37 N. Y. 384). But they fix the maximum limit of the amount which may be allowed, and prescribe the process by which that amount may be arrived at. This method or manner the surrogate’s court must follow; and this is what is meant by the phrase from the act of 1870 secondly above quoted. Section 318 (Code of Pro.) relates to the supreme court alone, and to a certain class of cases in it.

The surrogate’s court may give allowances, however, in lieu of costs ; and the Revised Statutes declare when it may award costs; and, by the act of 1870, whenever it may award costs by the Revised Statutes, it may give an allowance to counsel instead of costs to the party. The Revised Statutes confer a discretionary power to award costs. The surrogate may withhold costs from both or all parties. He may award them to the party who, in his judgment, is entitled to them. This does not mean the party who is technically successful—that is, who obtains a decree in his favor upon the question contested.

It means the party whose behavior in the circumstances provoking the litigation, whose situation in relalation to the estate, or the particular subject in controversy, is such that it is equitable and just that he be remunerated for his expenses in the litigation. The surrogate may also charge the costs of one party upon another, or upon the estate. The claim that his discretion stops here, and that he may not in any case give costs to both or all parties, is placed upon very narrow grounds. It is put solely upon the words “ the party . . . entitled.” It is argued that the use of the definite article “the” in connection with the phrase “party entitled,” shows that the legislature meant that the surrogate should determine which one party in particular of all contesting before him is entitled to costs. This is too narrow, as a matter of definition. It is manifest that, in all our uses of the article “The,” it directs what particular thing or things we are to take or assume as spoken of. “ ‘ The ’ (says Dr. Lowth) determines what particular thing is meant,” i. e., what particular thing we are to assume to be meant (Richardson’s Dicty. in voce). Yet this article is not always used to mean but one.

Take the well-worn and well-wearing quotation: “The man that hath not music in his soul is fit for treason, stratagem and spoils.” The meaning of the article is not exhausted when one man is found with no music in himself. “The man” means there “any man.” So in this statute, “the party . . . entitled” means “any party entitled.” It is too narrow, also, in view of the equitable character of the litigation in surrogate’s court, involving, as parties, executors, administrators, trustees, cestuis que trust, legatees, heirs-at-law, next of kin, infants, married women, guardians, wards, in whose favor or to whose harm rules as to the costs have grown up in equity from a long course pf adjudications, and in which cases great latitude has been taken by courts of equity (still, however, regulated by established principles) in granting or refusing costs, and in charging them upon persons or estates. A surrogate’s court is in its nature a court of equity, and has the discretion in regard to costs which that court has. It is too narrow, also, in view of the numerous different parties, with entirely or partly friendly or opposing interests, who contest in surrogates’ courts.

It is impossible to say that the legislature meant that the surrogate should determine, from among them all, the one party, who in his judgment was alone entitled to costs. There must be a larger discretion than that, or great hardship must be inflicted and manifest equities disregarded.

But this does not compel us to affirm the decree of the surrogate in this case, giving allowances. For, this view being taken, was the general term powerless to remedy what it saw was an erroneous exercise of discretionary power, and one of the shoots of a great and growing evil. A decree of a surrogate granting allowances is the subject of appeal upon the merits (Lain v. Lain, 10 Paige, 191; Wilcox v. Smith, 26 Barb. 316); and may be reviewed by the general term; and, if without justification in the facts and circumstances of the case, may be reversed entirely, or modified and reduced (Code of Pro. § 471; 3 R. S. 605, § 79; 10 Paige, supra).

In the case before us the order of the general term reversing the decree of the surrogate is silent as to the ground of reversal. We are not able to say whether the reversal was for a supposed want of power in the surrogate’s court to give an allowance to more than the prevailing party in the contest, or whether it was, that the judgment of the general term was, on all the facts and circumstances of the case, that the appellants were not entitled to costs. To be sure, the opinion delivered by the learned presiding justice is very clear in declaring a want of power. That, however, is no part of the record, and may not be looked into to find error.

As then the general term had the power to reverse for the cause above stated, and we are not able to say that that was not the cause of its judgment, and as we have no power to reverse an order resting in discretion of the court below (Code, § 11), nor have we the desire to do so in this case, the order of the general term should be affirmed.

All the judges concurred—Church, Ch. J., and Allen, J., in result. 
      
       This last clause refers only to the surrogate’s court of the city and county of New York. The statute is as follows: “§9. The surrogate of said county may grant allowances, in lieu of costs, to counsel, in any proceeding before him, in the same manner as are now prescribed by the Code of Procedure in civil actions.”
     