Opinion
March 12, 1909.
Arnold Davidson, for the motion.
Charles W. Church, Jr., opposed.
It is not necessary to amend our judgment of modification of the decree of the Surrogate by adding the words "and disbursements" to the words "with costs". The latter phrase includes disbursements except in appeals from orders; following by analogy in the case of Surrogate's decrees or judgments the express provision of section 3256 of the Code of Civil Procedure in respect of other courts, viz., that "a party to whom costs are awarded in an action is entitled to include in his bill of costs his necessary disbursements". There is no foundation for the suggestion that under our order the costs are to be paid out of the estate. If we meant that we would have said it. To grant this motion would be to introduce a bad precedent.
The motion is denied, without costs.
WOODWARD, JENKS, BURR and RICH, JJ., concurred.
Motion denied, without costs.