In re the Estate of Rylance

Arnold, S. The order of reference in this case was made, under section 2546 of the Code of Civil Procedure, for the purpose of taking and reporting to the surrogate the evidence upon the facts stated in the petition, which was for the pay-ment of an alleged claim against the infant’s estate. Citation was issued and served upon the infant, and also upon the guardians respectively of his person and estate, and a special guar-, dian was, upon the application of the minor, appointed to re-, present him in the proceeding. No answer was filed by any of these parties; but, notwithstanding that fact, .the burden was thrown upon the court of deciding whether the petitioner’s claim was a proper one to be allowed. The guardian of the infant’s estate co-uld have paid the claim without the sanction of an order of the court allowing such payment, taking the risk of any objection which might -be made upon its final accounting, but it very properly left it to the court to decide in advance of such accounting as to the propriety of its making such payment. The reference was for the purpose of taking [612] testimony for the information of the court, and to give an opportunity to the infant and the guardians representing his interests to cross-examine the witnesses produced in support of the claim. There was, however, no contest in the sense in which that term is used in section 2561 of the Code* and, therefore, the petitioner cannot be allowed costs as of a contested proceeding, but are entitled only to $25 costs allowed by that section in cases where there has been no contest. Additional costs allowed by .that section where there has been a trial or hearing upon the merits occupying' more than two days, has always been held here to apply only to- contested cases. The additional allowance provided for by section 2562 of the Code is confined to an accounting party upon the judicial settlement of his account, or on an intermediate accounting. This proceeding was not an accounting by the petitioner in any representative capacity, but was instituted by him under section 2846 of the Code, as an alleged creditor, for the purpose of establishing his claim and obtaining payment of the same from the infant’s estate, upon which application it has frequently been held that allowance may be made for past maintenance of an infant. Matter of Kerwin, 59 Hun, 589: Matter of Haslehurst, 4 Misc. Rep. 366. The petitioner is entitled only to $25 costs and his disbursements. An allowance of $100 is made to the special guardian. The proposed decree is approved and signed. Decreed accordingly.