New York County NyArchives Court.....Hendricks, Mortimer Vs. Montefiore Isaacs 1889
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ny/nyfiles.htm
************************************************
File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 1, 2008, 11:57 pm

Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

MORTIMER HENDRICKS, Respondent, v. MONTEFIORE ISAACS, as Administrator of the 
Goods, Chattels and Credits of JUSTINA B. HENDRICKS, Deceased, Appellant.

Reference of a claim against an estate — the costs are to be awarded as in a 
special proceeding and not as in an action.

Upon an appeal from a judgment, entered upon the report of a referee on a 
reference of a claim against the estate of defendant's intestate, and from an 
order granting costs and allowances:

Held, that as these proceedings are special proceedings under the statute, the 
costs in such proceeding are not regulated by the provisions contained in 
sections 1835 and 1836 of the Code of Civil Procedure, and that the court may 
award costs, although the conditions precedent to the right of the court to 
award costs in an action, as prescribed by section 1836, are absent.

That all the court can, in the first instance, adjudge by way of costs are the 
referee's fees and other disbursements necessarily incurred, and that it has no 
power to grant an extra allowance.

Upon a previous appeal to the General Term in this action a judgment was 
rendered awarding costs to the plaintiff in the event of his success upon a new 
trial.

Held, that as the plaintiff had succeeded upon the new trial he was entitled to 
such costs, as it is for the appellate court to determine as to whether, in case 
of an appeal, the costs should or should not be allowed against an executor or 
administrator,

Denise v. Denise (110 N. Y., 562) followed.

Appeal from a judgment, entered in the office of the clerk of the city and 
county of New York on May 22, 1888, upon the report of a referee upon the 
reference of a disputed claim against the estate of the defendant's intestate, 
and also from an order made at the New York Special Term, entered on May 11, 
1888, in the office of the said clerk, granting to the plaintiff an allowance of 
three per cent, besides costs.

William Man, for the appellant.

Abram Kling, for the respondent.

Van Brunt, P. J.:

The question of the right of the plaintiff to maintain this proceeding and to 
recover therein, seems to have been disposed of in the case of Hendricks v. 
Isaacs (46 Hun, 239), and, also, by the case of Rohrbach. The Germania Fire 
Insurance Company (62 N. Y., 47). It is, therefore, not necessary to discuss 
those points again.

The only other question which remains to be considered arises upon the appeal 
from the order granting costs and an extra allowance to the plaintiff. The right 
to costs seems to be governed by the provisions of the Revised Statutes, which 
provides that in these proceedings the court may adjudge costs as in actions 
against executors. Were it not for the decision of the Court of Appeals in the 
case of Denise v. Denise (110 N. Y., 562), we would be of the opinion that costs 
in such proceedings were regulated by the provisions of sections 1835 and 1836 
of the Code. But in that case it is distinctly held that, as these proceedings 
are special proceedings under the statute, they are not controlled by the 
provisions of sections 1835 and 1836, and that the court may award costs, 
although the conditions precedent to the right of the court to award costs in an 
action, as required by section 1836, are absent.

In order, therefore, to enable the court to award costs, no certificate of the 
judge or referee before whom the trial took place was necessary. It also follows 
that costs as in an action and costs of an action cannot be allowed by the 
court, and all that the court can, in the first instance, adjudge by way of 
costs is the payment of the referee's fees and other disbursements necessarily 
incurred. The court, therefore, in the award of costs, should have limited 
itself to the award of such referee's fees and disbursements, and had no power 
to grant an extra allowance.

The claim made that the plaintiff was entitled to the costs of the previous 
appeal, because costs were awarded upon that appeal to abide the final event, 
stands upon an entirely different foundation. It is for the appellate court to 
determine as to whether, in case of an appeal, costs should or should not be 
allowed against an executor or administrator. In this case the General Term, in 
the rendition of its judgment, has awarded costs to the plaintiff in the event 
of his success upon a new trial, and, having succeeded, he is clearly entitled 
to those costs. In the case of Denise v. Denise such an award of costs was 
distinctly upheld.

It would appear, therefore, that the order awarding costs of the trials and 
extra allowance should be modified by striking therefrom all the costs of such 
trials, except the referees' fees and necessary disbursements, and the order for 
the extra allowance, and that such order as modified be affirmed, without costs; 
and that the judgment appealed from should be modified by reducing the same by 
the amount of the costs and allowances taxed other than disbursements, and, as 
modified, affirmed, with costs.

Brady and Daniels, JJ., concurred.

Order as modified affirmed, without costs, and judgment appealed from, as 
modified, affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

File at: http://files.usgwarchives.net/ny/newyork/court/hendrick712gwl.txt
This file has been created by a form at http://www.genrecords.org/nyfiles/

File size: 6.0 Kb