Opinion
December, 1904.
George H. Fletcher, for the appellant.
Charles C. Sanders, for the respondent.
On the 31st of January, 1900, Frederick Domeyer died intestate and letters of administration were, on the fourth of April following, issued to the defendant, the public administrator of the county of New York. After the appointment of the defendant as such administrator notice to creditors was duly published, which required them to present their claims against said estate to the administrator at a time and place named on or before the 17th day of August, 1900. The plaintiff did not present any claim within the time limited by the notice, nor until July 11, 1903, when she presented a claim against the deceased's estate for $30,955.06, with interest from January 31, 1900. The claim was rejected by the administrator and subsequently an agreement was entered into by which the matter was referred to a referee to pass upon the validity of the same. The agreement on which the order of reference was made contained a stipulation to the effect that the costs of the successful party were not to exceed the referee's and stenographer's fees. The referee, after hearings had before him, found that the plaintiff was entitled to recover $13,951, which included interest. He also found that "the defendant in resisting the claim as filed has neither been unreasonable nor neglectful and has done his full duty. As, however, no consent had been filed by him at any time under section 1822 of the Code, costs may, under the provisions of section 1836 of the Code, be awarded to the plaintiff, and, in view of all the circumstances of the case, I have concluded to allow costs to the plaintiff." And, as a conclusion of law, he found that the claimant was entitled to recover "her costs of this action in addition to her disbursements and the referee's and stenographer's fees to be taxed, all to be paid by said administrator out of the assets in his hands as an expense of the administration of decedent's estate before the distribution of the estate among creditors." And "that the judgment to be entered * * * should provide for the payment of the plaintiff's costs and disbursements as a prior and preferred charge upon the assets of decedent's estate." After the report of the referee had been made the defendant made a motion to strike therefrom the provisions thereof awarding costs and disbursements. The motion was granted by modifying the referee's report by striking therefrom "any provision for costs and disbursements except the disbursements for referee's and stenographer's fees," and directing that the judgment to be entered on said report should not provide for the payment of any costs or disbursements to the plaintiff, except the amount of the referee's and stenographer's fees. The defendant appeals.
The order must be reversed. The Special Term had no power to change the report of the referee as to costs. The right to costs had to be determined by the referee. (Code Civ. Proc. § 1836.) Under the section of the Code of Civil Procedure cited the plaintiff was not entitled to costs unless the claim had been unreasonably resisted or neglected, and even then it was discretionary whether the referee would award costs against the decedent's estate or against the defendant personally. The referee having discretion as to the award of costs, the only method by which its exercise can be challenged is by an appeal from the judgment. ( Woodford v. Bucklin, 14 Hun, 444; Rosa v. Jenkins, 31 id. 384; Osborne v. Parker, 66 App. Div. 277.) The court could not, upon a motion, correct the error of the referee if one were made. That can only be done by a direct appeal from the judgment entered on such report.
It is difficult to see, in view of the provisions of the section of the Code of Civil Procedure referred to, and the finding of the referee, how costs could be awarded against the defendant. This section provides that the referee may award costs where it appears that the plaintiff's demand was presented 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. This claim was not presented within the time limited by the notice requiring creditors to present their claims and the referee found that the defendant in resisting the claim had neither been "unreasonable nor neglectful and has done his full duty." However, this question is not now before us and we do not now pass upon it. Whether the plaintiff is entitled to any costs or disbursements under the stipulation by law can only be determined on an appeal from the judgment entered on the report of the referee as made by him.
It follows that the order appealed from must be reversed, with ten dollars costs and disbursements to the appellant, and the motion denied, with ten dollars costs to the respondent.
O'BRIEN, INGRAHAM and HATCH, JJ., concurred; VAN BRUNT, P.J., concurred in result.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs to respondent.