19 N.Y.S. 91 | N.Y. Sup. Ct. | 1892
References had pursuant to sections 36 and 37 of the Revised Statutes (3 Rev. St., 7th Ed., 2300) are special proceedings. In Coe v. Coe, 37 Barb. 235, in speaking óf a similar case, Allen, J., said; “It is a statutory proceeding, and the only authority for a judgment is the report of the referee, which is subject to examination by the court.” In Young v. Cuddy, 23 Hun, 249, Gilbert, J., said: “References of disputed claims against executors, pursuant to 2 Rev. St. pp. 88, 89, §§ 36, 37, are ‘special proceedings.’ Code Civil Proc. §§ 3333, 3334. The provisions of the Revised Statutes regulating such proceedings have not been repealed by the Code of Civil Procedure.” And in Roe v. Boyle, 81 N. Y. 305, it was said: “And this has been generally, if not uniformly, regarded as a special proceeding, by judges who have had occasion to consider the point; ” citing cases. In Mowry v. Peet, 88 N. Y. 456, it was said: “In trying and adjudicating upon these matters, which are within the scope of the reference, the statute (2 Rev. St. p. 88, § 36) confers upon the referee and the court the same powers as if the reference had been made in an action. But the,proceeding is not an action.” In Paddock v. Kirkham, 102 N. Y. 599, 8 N. E. Rep. 214, Roe v. Boyle and Mowry v. Feet were referred to approvingly. In Eldred v. Eames, 48 Hun, 256, (decided by this court in 1888,) it was said: “Where a reference is had under the statute, the claim and stipulation stand in the place and stead of and for the pleadings. Such a reference is a special proceeding. Bucklin v Chapin, 1 Lans. 450; Hatch v. Stewart, 42 Hun, 164.” Although that case was reversed by the court of appeals, (115 N. Y. 401, 22 N. E. Rep. 216,) it was upon another point, to wit: “The referee has no power of amendment, and may not vary the matter referred.” Since the adoption of the Code of Civil Procedure several cases have arisen which recognize the right of the plaintiff to recover referee’s fees and disbursements as a matter of course. In Krill v. Brownell, 40 Hun, 72, (decided March, 1886, fifth department,) Smith# P. J., states the legislation upon the subject quite satisfactorily, and the court in that case reaches the conclusion that the prevailing party “is entitled to recover the fees of referees and witnesses, and his other necessary disbursements, as a matter of right.” His opinion was referred to in Larkins v. Maxon, 103 N. Y. 681, 9 N. E. Rep. 56, as well as other cases to the
In Hopkins v. Lott, 111 N. Y. 577, 19 N. E. Rep. 273, a case was before the court where a reference had been had under the statute, and a recovery of damages in the sum of six cents, and the defendant sought to charge the plaintiff with costs; and in the course of the opinion delivered in that case, Andrews, J., says: “The plaintiff was properly denied costs, because the payment of the claim was not unreasonably resisted, and it was referred by the agreement of both parties under the statute. The plaintiff’s cause of action was maintained by the judgment entered on the report of the referee, but his damages for the eviction, as determined, were nominal merely, and judgment was awarded in his favor for six cents only; but the right of the defendant to costs does not follow, because they were not awarded to the plaintiff under the special provisions of sections 1835 and 1836, * * * nor was the allowance of costs to the defendant discretionary, under section 3240 of the Code. The costs are regulated by the Revised Statutes and the Code, as in actions against executors and administrators.” In Hendricks v. Isaacs, (Sup.) 5 N. Y. Supp. 105, it seems to have been held that “all that the court can in the first instance adjudge by way of costs is the payment of the ref
The following conclusions are reached: (1) The reference had in this case was a special proceeding. (2) The plaintiff was entitled to recover the referee’s fees and disbursements. (3) The plaintiff was hot entitled to recover the taxable costs as in an action, to wit: Before notice of trial, $15; after notice and before trial, $15; trial fee, $30; trial occupying more than two days, $10. (4) The order appealed from should be reversed, with $10 costs and disbursements. (5) The judgment should be modified by striking therefrom all costs entered therein exclusive of the referee’s fees and disbursements. Order reversed, with $10 costs and disbursements. Judgment modified as stated in the opinion. Order to be settled before Hardin, P. J.
All concur.