
    New York County.
    Hon. R. S. RANSOM, Surrogate.
    June, 1888.
    Matter of Hatten. In the matter of the estate of Mary T. Hatten, deceased.
    
    Where contestant of a will appealed, from a decree admitting the same to probate, to the general term, which reversed the decree and directed a trial in the Common Pleas, where proponent obtained a verdict, which was certified to the Surrogate’s court, no motion for a new trial having been made,—
    
      Held, that the latter court could not award to proponent costs of the appeal.
    Schell v. Hewitt, 1 Dem., 249—compared.
    Taxation of costs, upon entry of decree admitting will to probate pursuant to verdict certified from Common Pleas.
   The Surrogate.

The will ‘of deceased was admitted to probate on October 18th, 1886, and from the decree admitting it an appeal was taken to the General Term of the Supreme Court, which, by an order entered August 20th, 1887, reversed the decree of the Surrogate, and directed certain issues of fact to be tried in the Court of Common Pleas before a jury. No direction as to costs of the appeal was made by the General Term. A trial of the issues resulted in a verdict in favor of the proponents.

No motion for a new trial was made by contestants, and after the lapse of ten days from the rendition of the verdict, i. e., February 7th, 1888, the Court of Common Pleas certified this verdict to the Surrogate’s court. The proponents now seek to tax their costs and disbursements of their appeal to the General Term, and of the trial had in the Court of Common Pleas.

In Schell v. Hewitt (1 Dem., 249), this question was very carefully considered, and though the facts were somewhat different from those in the case at bar, the same principles must apply. It was held in that case that §§ 2558 and 2560, when compared with §2589 of the Code of Civil Procedure, while they provide, among other things, for the adjustment in Surrogates’ decrees of costs in appeal proceedings, it is not their intention to give to the Surrogate any power to award such costs when the court above has refused to award them.

Section 2589 provides that the appellate court may award to- the successful party the costs of an appeal, or may direct that costs shall abide the event of a new trial or of subsequent proceedings in the Surrogate’s court, and that the costs may be made payable out of the estate, or fund or personally by the unsuccessful party, as directed by the appellate court; or if such a direction is not given, as directed by the Surrogate, which means not that if the appellate court fails to award appeal costs the Surrogate may award them, but if the appellate court does award costs and gives no direction whether the same shall be paid out of the estate or fund, or by the unsuccessful party, the Surrogate may exercise his discretion in the particulars wherein the appellate court has failed to exercise its own.

The above case is, I think, directly in point. The circumstance that there was a jury trial directed to be had in the Court of Common Pleas by the General Term of the Supreme Court upon reversing the decree of the Surrogate, in no way helps the contention of the applicant. The jury trial mentioned in subd. 2 of § 2558 is the same referred to in § 2560, and that is a trial which the Surrogate may order with respect to a controverted question of fact arising upon a special proceeding for the disposition of real estate in pursuance of § 2547. Possibly the case where the Surrogate may grant a new trial by a jury upon a motion for the purpose made under § 2558 is also such a trial as is contemplated by the sections just mentioned.

To authorize the Surrogate, however, to award costs in either of these cases, there must, as required by subd. 2 aforesaid, be an absence of the direction specified in subdivision 1. The trial in the present case is not one which has been ordered by the Surrogate. He can, therefore, make no award of costs with respect to it.  