Opinion
June 21, 1966
Edward R. Yamin for Ruth S. Spund, petitioner, respondent.
Buckley Buckley ( Matthew Chess and James H. Maxfield of counsel), for Long Island Trust Co., as executor, appellant.
Alex E. Nashman for Arthur Lindo, appellant.
Gilbert Henoch, special guardian for Donald Mueller and others, infants.
Anthony Kali for Albert A. Counsellor, general guardian of infants, respondent.
In this discovery proceeding a proposed order making the order of affirmance on appeal ( 41 Misc.2d 536, affd. without opn. 23 A.D.2d 820, mot. for lv. to app. den. 17 N.Y.2d 423) the order of this court has been submitted together with separate bills of costs of the petitioner, the executor and the special guardian.
In its order the Appellate Division affirmed the decree appealed from with separate bills of costs to the petitioner, the executor and the special guardian, payable out of the estate. Each of the three bills of costs seeks to tax costs for the proceeding in this court in addition to those permitted by statute on the appeal. Where there is an affirmance or reversal "with costs", the costs referred to are those in the Appellate Division and not costs in the lower court ( Matter of Guggino, 166 Misc. 424). Moreover, a failure to provide for costs in this court in the decree or to reserve the fixing of such costs, prevents their later allowance ( Matter of Anderson, 35 Misc.2d 409).
Accordingly, the sum of $1,050 in the special guardian's proposed bill of costs, the $2,250 in the executor's proposed bill of costs and the $1,500 in the petitioner's proposed bill of costs, will be deleted. In addition, the petitioner's disbursements incurred in the proceeding in this court, exclusive of the stenographer's fee, are also disallowed, namely, the sum of $20.25 and the sum of $75.99. To be added to the petitioner's bill of costs is an additional $10 granted on a motion for leave to appeal to the Court of Appeals.
The special guardian is requested to file an affidavit covering the services performed by him in the proceeding in this court and on appeal, in order that his compensation may be fixed in the order.