Outhouse v. Odell

PRATT, J. It is clear from an examination of the case of Larkins v. Maxon, 103 N. Y. 680, 9 N. E. 56, that the provisions of the old Code (section 317) were not repealed by Laws 1880, c. 245; Code Civ. Proc. At the time this decision was rendered, sections 1835 and 1836 of the Code of Civil Procedure were in force, and now are in force, and section 317 of the old Code is in force, unless repealed by chapter 686 of Laws of 1893.1 The chapter last mentioned provides that, on the entry of the order of reference, the proceeding shall become an action in the supreme court, and that the reference shall be governed on the question of costs by sections 1835 and 1836 of Code of Civil Procedure. We therefore see that sections 1835 and 1836 of Code of Civil Procedure are not inconsistent with section 317 of the old Code, and that disbursements can be allowed where no costs are given by the decision. A distinction between costs and disbursements seems to have been maintained ever since the passage of section 317 of the old Code. The Laws of 1893 (chapter 686) make no reference to disbursements whatever; therefore there has been no change in the law in regard to disbursements since the decision in Larkins v. Maxon, supra. The Laws of 1893, before referred to, besides making the proceeding an action in the supreme court, provided that the referee, in allowing or withholding costs, should be governed by sections 1835 and 1836 of the present Code; and, as we [389] have already seen, those sections make no reference to disbursements, and, notwithstanding those provisions, disbursements can be allowed. A remarkable construction is that the legislature, by passing chapter 686 of Laws of 1893, only intended to substitute a reference under the Revised Statutes for one under the Code, as they made no mention of disbursements in that statute. By not repealing section 317 of the old Code, and making no allusions to the subject, I think it a fair inference that the legislature intended to make no change in the existing law on that subject. With some hesitation, we feel constrained to affirm the order, with $10 costs and disbursements. Footnotes [1] The provision referred to amends Code Civ. Proc. § 2718.