Babbage v. Webster

DWIGHT, P. J. The proceeding was on a claim against the estate of a deceased person, - which was referred by consent, under the statute. 2 Rev. St. pp. 88, 89, §§ 36, 37, (Birdseye’s St. p. 1132,. §§ 179, 180.) The report of the referee shows that, after the appointment for a hearing, the case was adjourned from time to time, at the instance of the plaintiff, and that oh the last adjourned day [301] no evidence was offered on the part of the plaintiff, and the proceeding and claim were accordingly dismissed. The court at special term confirmed the report of the referee, and ordered judgment in favor of the defendant, dismissing the claim, with costs. It is from the latter provision only of the order that this appeal is taken. It is clearly not well taken. The award of costs in these proceedings is entirely controlled by two statutory provisions, one of which is that cited above from the Revised Statutes. The other is contained in sections 1835 and 1836 of the Code of Civil Procedure. The provision of the Revised Statutes (2 Rev. St. p. 89, § 37, supra) is that the court may confirm the report of the referee, ■“and adjudge costs as in actions against executors;” and the provision of the Code referred to establishes the rule as to costs in actions against executors. But it is to be observed that the rule relates only to costs against the defendants in such actions, and does not affect the award of costs against the plaintiffs. The provision is, in effect, that only when the plaintiff’s demand is duly presented, and either payment is unreasonably resisted or neglected, •or reference is refused, can costs be awarded against the executor or administrator, and it is these facts, as to presentation, resistance of payment, and refusal to refer, which must be certified by the judge or referee who tried the case. There is therefore nothing in the two provisions of the statute, taken- together, which limits the discretion of the court to award full costs to the defendant, and against the plaintiff, in the proceeding by reference like the present; and all the cases cited by counsel for the appel-. lant requiring a certificate of the referee as a condition of the award of costs are cases in which judgment was in favor of the plaintiff, and the question was as to the award of costs against the executor or administrator defendant. Ely v. Taylor, 42 Hun, 205; Mersereau v. Ryers, 12 How. Pr. 300; Morgan v. Skidmore, 3 Abb. N. C. 92; Schenck v. Rickaby, (Sup.) 14 N. Y. Supp. 444. There is no doubt of the discretion of the court to award costs, as in an action, against the plaintiff, in a proceeding like this, whenever the complaint is dismissed for any cause. The order must be affirmed. Order appealed from affirmed, with $10 costs and disbursements. All concur.