
    Richard P. McBride v. Frank O. Chamberlain et al., as administrator with the will annexed of Elbridge G. Lapham, deceased.
    
      (Supreme Court, Special Term, Ontario County,
    
    
      Filed June, 1893.)
    
    1. Costs—Executors and administrators.
    Sections 1835 and 1836 do not have reference to actions against executors or administrators for equitable relief.
    
      2. Same.
    Where such action is referred, costs are within the referee’s discretion.
    3. Same—Review.
    The exercise of such discretion cannot be reviewed upon a motion at special term.
    Motioh to correct judgment by striking certain items of costs ' therefrom.
    
      Henry M. Field, for pl’ff; Charles B. Lapham, for def ts.
   Davy, J.

The issues raised by the pleadings in this case were, by stipulation, referred to a referee to hear, try and determine, who rendered a decision in favor of the plaintiff. An appeal was taken from the judgment rendered upon this report which was reversed and a new trial granted, with costs, to abide the event. The case was then, by agreement, referred to another referee who also rendered a decision in favor of the plaintiff, with costs, holding that the plaintiff was entitled to a judgment requiring the defendants, as administrators, to assign and deliver to the plaintiff the bond and mortgage referred to in the complaint and restraining them from collecting any of the interest or principal due and unpaid thereon, and that the plaintiff was also entitled to recover the sum of $282.99, with interest thereon from the date of the referee’s report.

Upon the taxation of costs the defendants’ attorney appeared before the clerk of Ontario county and objected to the allowance of $192 costs, incurred on the second trial, upon the ground that the referee had no power, under the Code to award costs against the administrators; that costs could not be imposed against them only upon application to the court This motion is, therefore, made to correct the judgment by striking therefrom the said sum of $192.

Costs against executors and administrators in civil actions and in proceedings by reference, under the statute, are regulated by the Code of Civil Procedure. A proceeding by reference, under the statute, to enforce payment of a disputed claim against the estate of a decedent is not an action but a special proceeding founded solely upon the statute. 2 E. S., §§ 89-90. It can not be commenced by service of a summons and there are no pleadings. It can only be referred by the consent, in writing, of both parties and the approval of the surrogate. The only way in which it can be tried is before a referee, who has no power over the subject of costs, and his report is required to be confirmed before going into judgment. Roe v. Boyle et al., 81 N. Y., 305 ; Eldred v. Eames, 115 id., 403; 26 St. Rep., 277.

An action is commenced by the service of a summons in some one of the modes prescribed by law and no proceeding can be an action unless it be commenced' by the service of a summons on the opposite party.

The right oí a plaintiff, under § 3246 of the Code, to costs, on the recovery of a judgment in his favor in an action against an executor or administrator, is qualified by §§ 1835 and 1836, which make the right contingent and not absolute. The last section prohibits the allowance of costs in an action against an executor or administrator upon the recovery of a money judgment unless the claim against the estate was duly presented and the payment thereof was unreasonably resisted or neglected or the defendant refused to refer as prescribed by law, either of which conditions existing the court may, in its discretion, adjudge costs in favor of the plaintiff, and these facts must be certified by the judge or referee before whom the trial takes place.

It will be seen that §§ 1835 and 1836 define the nature of the action wherein costs may be allowed, which is, where the judgment for a sum of money only is rendered. These sections do not have reference to actions against executors or administrators for equitable relief. The judgment entered in this case requires the defendants, as administrators, to assign a certain bond and mortgage to the plaintiff and to account and pay over to him the interest money collected thereon. The action is for equitable relief and the issues having been referred to a referee to hear, try and determine, costs were within his discretion.

Section 1022 of the code of civil procedure expressly provides that in an action where costs are in the discretion of the court, the decision or report must award or deny costs; and if it awards costs it must designate the party to whom costs to be taxed are awarded. The referee’s report, as to costs, stands as the decision of the court.

The referee’s report in this case complied with the requirements of the above section. It contained findings of fact and conclusions of law and awarded costs against the defendants.

In the case of Barker v. White, 3 Keyes, 617, New York Court of Appeals Decisions, 95, the referee found in favor of the plaintiff and awarded costs against the defendant, the administrator. The court held that the action being in equity, the giving or withholding of costs against the administrator was within the discretion of the referee.

In Piper v. Poppenhauser, 43 N. Y., 68, the point was raised that the court had erroneously awarded costs against the executors contrary to the provisions of the code; the court held, Peckham, J., writing the opinion, that costs in equity cases are in the discretion of the court, to grant or refuse. Citing the case of Barker v. White, supra, with approval.

Folger, J., in Herrington v. Robertson, 71 N. Y., 280, says: “In equity suits costs are in the discretion of whatever court passes upon the question.”

The awarding or withholding of costs in this action was discretionary with the referee, and he having awarded costs against the defendants, his decision cannot be reviewed upon this motion. The remedy is to except to the findings of the referee and to appeal to the general term from the judgment entered upon his report. Woodford v. Bucklin, 14 Hun, 444; Rosa v. Jenkins, 31 Hun, 384.

This motion, therefore, must be denied, with ten dollars costs to the plaintiff.  