Dupuy v. Wurts

Davis, P. J. This case came into this court by appeal from the decree of the surrogate of the city and county of New York, admitting the will in contest to probate. The decree of the surrogate was affirmed by the general term, and, on appeal to the. court of appeals, the judgment of the [226] supreme court was also affirmed. The question of costs was disposed of by the court of appeals, by directing that the costs of all the parties in that court and in the courts below should be paid out of the estate. It appears that, on the decision of the case in his court, the surrogate allowed counsel fees to the respective parties, and among such allowances the sum of $1,000 to the contestant’s counsel. The special term granted the motion for the additional allowance, and from the order entered thereupon this appeal is taken. We are of opinion that the court below had power, under the Code, to grant an allowance. The 318th section of the Code is clear and explicit. From the time the appeal from the surrogate was brought before the supreme court for review, the proceedings are to be deemed an action at issue on a question at law “ for all purposes of costs.” Fon such purposes the case is to be treated as an action originally commenced in this court, and tried upon an issue of law. Seguine agt. Seguine (3 Abb. Pr. Rep. [N. S.], 442) is precisely in point, and, we think, was correctly decided. Wolf agt. Van Nostrand (2 N. Y., 570), and The People agt. The N. Y. Central R. R. Co. (29 N. Y, 428), hold that appellate courts cannot grant the allowance, because the statute gives the same by way of indemnity for the expense of the trial in the court of original jurisdiction. This court, in a late case, has followed those decisions and denied an allowance, when no costs were recovered by either party in the court in which the action was tried. But by section 318 of the Code, the appellate' court is pro hae mee made the court of original jurisdiction. The objection that an allowance having been made in the surrogate’s court, none can be made in this, is not well taken. That allowance was exclusively for services in that court; and as the statute makes the appeal to this court res nova [227] for the purposes of costs, the court is clothed with full discretion in the matter. There is no reason to interfere with the order on the ground that the amount was excessive. The order should be affirmed, with costs. Laweence and Daniels, JJ., concurred.