61 N.Y.S. 953 | N.Y. Sup. Ct. | 1899
This motion, involves the right of the plaintiff to tax costs upon a favorable report of a referee appointed under section 2718, Oode of Civil Procedure, to determine a disputed claim against the estate of Henry P. DeGraef, deceased. As is usual in such cases, there were no pleadings. The referee filed his decision on July 27, 1899, directing judgment in favor of the plaintiff, but made no mention of costs. On September first he made a certificate that the claim had been presented to the executors 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, and that in his opinion costs should be awarded to the plaintiff against the defendants. The plaintiff, after two unsuccessful motions not affecting the question here, noticed his costs and disbursements for taxation before the clerk, who, against the objection of defendants, taxed the costs as presented and entered judgment in favor of the plaintiff for the amount found by the referee to be due, and for the costs as taxed. The defendants, having duly excepted to the taxation of the costs by the clerk, now move that the taxation be vacated and the judgment be modified by striking out the amount of costs therein included. The decision of the motion turns upon the question whether the referee had power, after the rendition of the report, to make an effectual certificate entitling the plaintiff to costs. The defendants do not question the right of the plaintiff to costs if the referee had incorporated in his report the necessary certificate of facts and had therein awarded coslts to the plaintiff, but they insist that as soon as the report had been delivered he became functus officio, and no longer had authority to make any effective certificate or order in the case. To support this view reference is made to First Natl. Bank v. Levy, 41 Hun, 461, where the court refused to send a report back to a referee in order that he might make a direction as to costs which he had inadvertently omitted in the report as rendered. This case, however, has no applicability to the present motion, because it was an action in equity in which the award of costs rested in the discretion of the referee. In the present action the question of costs is a matter of right and not of discretion. All the referee can do is to find and certify the facts as to unreasonable resistance or neglect, and as he finds that fact one way or the other the statute allows or withholds costs. Section
Motion denied, with ten dollars costs.