
    Matter of the Judicial Settlement of the Account of Elizabeth S. Baldwin, as Executrix, etc., of George N. Baldwin, Deceased.
    
    
      (Surrogate's Court, New York County
    
    
      Filed December, 1899.)
    1. Eemittitur of Court of Appeals — Power of Surrogate Thereunder.
    Where the remittitur of the Court of Appeals dismisses, “with costs,” an appeal by executors from an order of the General Term, denying their right to compel payment of a. claim against another estate, and remits the proceedings to the Surrogate’s Court where they were initiated, the latter court has no power to pass on the question whether an administrator with the will annexed who, before the appeal was reached in the Court of Appeals, had been appointed upon the removal of the executors, should have been substituted, in the latter court, before the default of the executors could have been taken there.
    2. Same — Dismissal of Appeal “ With Costs ” — Defeat of Executors,
    Upon a Technicality.
    Where executors, having a prima fade just claim against another estate, • and who have been sustained therein by the surrogate, are defeated at the General Term upon a technicality, and their appeal to the Court of Appeals is dismissed, upon their default, “ with costs,” they must be charged personally with the costs of both appellate courts, but with no costs or disbursements in the Surrogate’s Court beyond referee’s fees paid by their adversary.
    
      In this estate, a compulsory accounting was had at the instance of the executors of one Elizabeth Carter,- who claimed to be creditors of the estate of George R. Baldwin by virtue of a judgment recovered for rent. This judgment was entered on the report of a referee, appointed to hear and determine the case, which report contained no express direction to enter judgment, but found as a conclusion of law that the same should be awarded against Elizabeth S. Baldwin, the executrix of the decedent George R. Baldwin, not specifying that it was to be entered against her in her representative capacity as executrix, although the referee’s findings of fact showed that such was the case. The county clerk entered judgment against her in that capacity, and an appeal was taken therefrom to the General Term, which held the same invalid on the ground that there was no direction to show how judgment should be entered, and that the clerk was not authorized to enter it according to his own views, since the referee’s findings of fact showed the liability of Mrs. Baldwin to be in her representative capacity, and his conclusion of law contemplated her personal liability. (See opinion of the General Term in Olason v. Baldwin, reported 13 NT. T. S'upp. 371). The General Term, however, did not order the judgment vacated; the order, entered on its said opinion, simply directing that the appeal be dismissed “ without prejudice to the right of the appellant to appeal from any judgment which may hereafter be entered.”
    ¡Nothing further was ever done in the action, so that the judgment stood on the docket as valid when the present accounting proceeding was brought. Such being the case, the surrogate then took the view that said judgment could not be attacked collaterally and must be considered as existing and valid, notwithstanding the opinion and order of the General Term above referred to. See Surr. Dec. 1893, p. 186. A decree was, therefore, made, adjudging that the executrix of the above named decedent Baldwin should pay to the petitioning executors the amount of the said judgment, with interest and costs, and from that decree an appeal was taken by said executrix to the General Term. Its opinion (87 Hun, 372) holds that, while no express direction to enter judgment need be contained in the referee’s report (under § 1022 of the Code of Civ. Pro.) to authorize the clerk to enter it, if, “ from the whole or .any part of the referee’s report the particular form and the terms of the judgment to which the successful party is entitled can be ascertained,” yet, here, such was not the case, as the findings of fact and conclusions of law indicated different liabilities. On account of that, the clerk in entering judgment would have to •exercise judicial discretion, and his doing so would be, not simply an irregularity rendering the judgment voidable, but would render it void because the defect was one which was patent upon the judgment-roll. Its invalidity could, therefore, the General Term held, be set up collaterally, and it reversed the surrogate’s decree, “ with costs to the said appellant.”
    From this order of reversal an appeal was taken by the petitioning executors to the Court of Appeals. Before it came up for argument they were removed by the surrogate of Richmond county, who had jurisdiction of their decedent’s estate, and an administrator with the will annexed was appointed. See opinion in that proceeding, 5 App. Div. 508. This administrator c. t. a. was never substituted on this appeal to the Court of Appeals, and, when the case was called for argument there, the appellants defaulting, an affirmance was had; the remittitur directing “ that the appeal from the order of the 'General Term of the Supreme Court be and the same hereby is dismissed, under Rule 15 (Ct. of App. Rules), with costs,” and that the record be remitted to this court, “ there to be proceeded upon according to law.”
    A motion was made thereupon to the surrogate for judgment npon the remittitur, and that costs in all courts be granted against the petitioning executors personally. In opposition, it was urged that the administrator with the will annexed, who had superseded the petitioners, should have been substituted for them before an affirmance was taken in the Court of Appeals, and that, in any case, the petitioners should not be personally charged with costs. Upon that motion the following opinion was rendered:
    Isaac 2ST. Miller, for motion; George W. Stephens, opposed.
    
      
       See 158 N. Y. 713.
    
   Varnum, S.

I am constrained to follow the directions of the remittitur herein, and cannot pass on the question whether or not there should have been a substitution of the administrator cum testamento annexo for the executors, petitioning herein, before the proceedings in the Court of Appeals were had and the default there taken, although it is possible that section 756 of the Code would not apply to this proceeding because of the provisions of subdivision 6 of section 3347. The order of the Appellate Division, therefore, will be effectuated by the judgment and decree of this court, in accordance with the remittitur from the Court of Appeals, and costs and disbursements in those courts will be allowed and taxed against the petitioning executors as such upon the settlement of the decree. Such decree may be presented settling the account of the executrix as filed. I shall not, however, allow her costs in this court, but only her disbursement for referee’s fees herein, namely, $180. This is because the petitioners have been defeated on a technicality. (Clason v. Baldwin, 13 N. Y. Supp. 371, and proceedings in this accounting.) In the case cited it is said that “ the facts found by the referee ” established prima facie the liability of the executrix herein to the claim sought to be enforced against her in this proceeding, and, under the circumstances, I do not feel that the petitioning executors should be charged with costs in this court. The directions of the appellate courts only cover costs in those courts. Matter of Water Comrs. of Amsterdam, 104 N. Y. 677; Broadway Sav. Inst. v. Pelham, 148 id. 737.

Decreed accordingly.  