MATTER OF RAAB

Full title: In the Matter of the Estate of ROSA RAAB, Deceased. CARRIE KUHN…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 1, 1900

47 App. Div. 33 (N.Y. App. Div. 1900)

62 N.Y.S. 332

Opinion

January Term, 1900.

George M.S. Schulz, for the appellant.

Thomas E. Murray, for the respondent.

BARRETT, J.:

This was a proceeding under section 2718 of the Code of Civil Procedure, brought by Carrie Kuhn to recover for personal services rendered to Rosa Raab, deceased, Mrs. Raab's executor rejected the claim, and thereupon it was referred — by agreement and order — to a referee to hear and determine.

We have gone over the evidence adduced before the referee, and we think it justified him in finding, as he did, that the services specified in the claim were rendered, and that they were so rendered with the expectation, and upon the understanding, that Mrs. Raab would compensate Mrs. Kuhn therefor. The circumstances under which the services were rendered were such as to warrant the implication of a promise to pay the claimant their reasonable value. The questions upon this head, both of fact and law, were carefully considered by the referee, and we see nothing in his opinion upon the merits which calls for criticism.

We think, however, that his certificate allowing costs against the executor was unwarranted. Costs can be allowed against an executor, in such a proceeding as this, only when the referee certifies that the payment of the claim was unreasonably resisted or neglected. (Code Civ. Proc. §§ 2718, 1835, 1836; Whitcomb v. Whitcomb, 92 Hun, 443, citing Matson v. Abbey, 141 N.Y. 179. ) No such certificate was given here. Nor could the referee have properly so certified, for the claim — when and as presented to the executor — was certainly a doubtful one. Mrs. Kuhn apparently made no request for payment during Mrs. Raab's lifetime, and her original demand upon the executor was materially reduced, namely, from $1,300 to $992.50. ( Anderson v. McCann, 14 App. Div. 365; Ryan v. McElroy, 15 id. 216.) It is conceded that the disbursements were properly allowed.

The judgment should accordingly be modified by striking out the allowance of costs, and as modified affirmed, without costs of this appeal.

VAN BRUNT, P.J., RUMSEY, O'BRIEN and INGRAHAM, JJ., concurred.

Judgement modified by striking out the allowance of costs, and as modified affirmed, without costs of appeal.