Opinion
November, 1899.
Julius H. Seymour, for plaintiff.
Hatch Wickes, for defendants.
This motion involves the right of the plaintiff to tax costs upon a favorable report of a referee appointed under section 2718, Code of Civil Procedure, to determine a disputed claim against the estate of Henry P. DeGraef, deceased. As is usual in such cases, there were no pleadings. The referee filed his decision on July 27, 1899, directing judgment in favor of the plaintiff, but made no mention of costs. On September first he made a certificate that the claim had been presented to the executors within the time limited by a notice published as prescribed by law requiring creditors to present their claims, and that the payment thereof was unreasonably resisted or neglected, and that in his opinion costs should be awarded to the plaintiff against the defendants. The plaintiff, after two unsuccessful motions not affecting the question here, noticed his costs and disbursements for taxation before the clerk, who, against the objection of defendants, taxed the costs as presented and entered judgment in favor of the plaintiff for the amount found by the referee to be due, and for the costs as taxed. The defendants, having duly excepted to the taxation of the costs by the clerk, now move that the taxation be vacated and the judgment be modified by striking out the amount of costs therein included. The decision of the motion turns upon the question whether the referee had power, after the rendition of the report, to make an effectual certificate entitling the plaintiff to costs. The defendants do not question the right of the plaintiff to costs if the referee had incorporated in his report the necessary certificate of facts and had therein awarded costs to the plaintiff, but they insist that as soon as the report had been delivered he became functus officio, and no longer had authority to make any effective certificate or order in the case. To support this view reference is made to First Natl. Bank v. Levy, 41 Hun, 461, where the court refused to send a report back to a referee in order that he might make a direction as to costs which he had inadvertently omitted in the report as rendered. This case, however, has no applicability to the present motion, because it was an action in equity in which the award of costs rested in the discretion of the referee. In the present action the question of costs is a matter of right and not of discretion. All the referee can do is to find and certify the facts as to unreasonable resistance or neglect, and as he finds that fact one way or the other the statute allows or withholds costs. Section 2718, Code of Civil Procedure, under which the claim in suit was referred, distinctly provides that such a proceeding as this is an action in this court. Its language is "On filing such agreement and approval in the offiec of the clerk of the supreme court in the county in which the parties or either of them reside, an order shall be entered by the clerk referring the matter in controversy to the person or persons so selected. On the entry of such order the proceeding shall become an action in the supreme court. The same proceedings shall be had in all respects, the referees shall have the same powers, be entitled to the same compensation and subject to the same control as if the reference had been made in an action in which such court might by law, direct a reference. In determining the question of costs the referee shall be governed by sections eighteen hundred and thirty-five and eighteen hundred and thirty-six of this act." It has been repeatedly held that the purpose and effect of this section is that the proceeding after reference is to be treated and considered as an action in the Supreme Court, and that the successful party is entitled to costs, the same as in an action in that court, provided that, if the successful party be the claimant the fact shall appear that the payment of the claim was unreasonably resisted or neglected. Winne v. Hills, 91 Hun, 90; Adams v. Olin, 78 id. 311. Section 1836, Code of Civil Procedure, referring to actions upon claims against decedents' estates, provides that if the claim be seasonably presented to the executors and it appears that "the payment thereof was unreasonably resisted or neglected, or that the defendant did not file the consent provided in section 1822 at least ten days before the expiration of six months from the rejection thereof, the court may award costs against the executor or administrator, to be collected, either out of his individual property or out of the property of the decedent, as the court directs, having reference to the facts which appear upon the trial. Where the action is brought in the supreme court the facts must be certified by the judge or referee, before whom the trial took place." It will be noted that this section provides that "the court may award costs," but the word "may" as thus used is to be construed as "shall." Carter v. Barnum, 24 Misc. 220. It has also been held that, although section 1836, read alone, would apparently give power to the court alone to award costs, yet that it must be read in conjunction with section 2718, and being so read, confers power upon a referee to award costs against an executor on a referred claim. Fisher v. Bennett, 21 Misc. 178. I think that it is quite clear from the language of the Code and from the decisions of the courts bearing on the question that a successful claimant against an executor or administrator, whose claim has been referred under section 2718, is entitled to costs as in an action as a matter of right if in fact the payment of his claim has been unreasonably resisted or neglected, and that the evidence of that fact is the certificate of the referee to whom the claim is referred. The next question is whether such certificate must be incorporated in the report, or may be separately made. The language of section 1836 does not in terms require that the certificate of the judge or referee shall be incorporated in his report or decision, and would indeed better bear the construction that it should be contained in a separate document, and the cases appear to support this construction. Doubtless, the referee might, if he saw fit, incorporate a certificate in his report, but he is not, I think, bound to do so. The only requisite of the statute is that he shall make such a certificate, and whether he make it as a part of the report, or independently, he is acting within the power expressly conferred upon him by the Code. In Carter v. Beckwith, 104 N.Y. 236, costs were allowed to a plaintiff upon a separate certificate of the referee as to the necessary facts. If, then, the plaintiff, in such a case as the present, is entitled to costs as a matter of right, upon the certificate of the referee as to the requisite facts, and if that certificate may be made separately from the report, the sole question remaining is whether or not the referee may make such certificate after he has rendered his report. Section 3248, Code of Civil Procedure, provides as follows: "Where, upon the trial of an action, the title to real property comes in question, or any other fact appears, whereby either party becomes entitled to costs, or to the increased costs specified in section three thousand two hundred and fifty-eight of this act, the judge presiding at the trial, or the referee, must, upon the application of the party to be benefited thereby, either before or after the verdict, report, or decision is rendered, make a certificate, stating the fact. Such a certificate is the only competent evidence, as to the matter, before the taxing officer." It is difficult to see why this section does not apply to the certificate upon which the taxing officer acted in the present case. The fact which determined the plaintiff's right to costs was the unreasonable resistance or neglect by the defendants. By section 1836 the referee was expressly authorized to pass upon that fact, and, as evidence of his finding therein, to make a certificate. This certificate, being as to a fact the existence of which entitles the plaintiff to costs, answers precisely the description of the certificate which, by section 3248, the referee is expressly empowered to make either before or after his report. The clerk was right in taxing the costs and including them in the judgment. The motion must accordingly be denied, with ten dollars costs.
Motion denied, with ten dollars costs.