274 A.D. 888 | N.Y. App. Div. | 1948
In an action to recover for work, labor and services, order granting reargument and on reargument adhering to the original decision which denied defendant’s motion for a new taxation of costs so as to strike out an extra allowance awarded by a referee who was appointed to hear and determine the issues, insofar as appealed from, affirmed, with $10 costs and disbursements. A referee who hears and determines the issues upon a trial acts as “ the court ” and is empowered to award or withhold discretionary costs as an incident of the trial for the purpose, of effectuating the complete disposition of the controversy and rights of the parties. (Civ. Prac. Act, §§ 469, 470, subd. 2; §§ 1513, 1533; Schuyler V. Smith, 51 N. Y. 309, 317; Graves v. Blanchard, 4 How. Prac. 300, 302-303; Osborn v. Cardeza, 208 N. Y. 131, 134; Twin Realty Corp. v. Glens Falls Portland Cement Co., 225 App. Div. 515; Hun v. Salter, 24 Hun 640, 641.) We are constrained, therefore, not to follow the authority of Howe v. Muir (4 How. Prac. 252, 253); Ongley v. Marcin (214 App. Div. 455, 464); Di Silvestro v. Sons of Italy Grand Lodge (228 App. Div. 14, 18); and the dictum in Pinsker v. Pinsker (44 App. Div. 501). Carswell, Acting P. J., Johnston, Adel, Nolan and Sneed, JJ., concur.