16 Abb. N. Cas. 208 | N.Y. Sup. Ct. | 1885
The plaintiff, who has obtained the report of a referee in his favor for the sum of $4,468.62, moves for the confirmation of the report and for costs. To the former, as there has been no case with exceptions presented, nor any cause shown why the plaintiff should not have a confirmation of the report, he is entitled, but to the latter there are serious objections to be considered.
It was a reference under part 2, chapter 6, title 3, article 2 and section 36 of the Revised Statutes (2 Edm. ed., 91). The claim as presented was for $9,013.08, upon which there was a credit given for $1,800, making the balance claimed by the bill as originally presented $7,213.08. Subsequently, however, an amended bill was presented by which the balance claimed was $9,462.68.
The report of the referee found the indebtedness of the deceased to the plaintiff to be $7,829.99, and that of the plaintiff to the deceased $4,072.73, leaving due from the latter, at the time of death, to the former, $3,757.26. The referee allowed interest on the balance found due to the plaintiff from the day of the commencement of this proceeding (May 3, 1882), which was $711.36, making the total sum found due at the date of the report (June 26, 1885) $4,468.62.
It was conceded upon the argument, and so the law is, that
The reduction of such claim from $7,213.08, as originally presented, to $4,468.62, and the establishment of a set-off of $4,072.73 instead of $1,800, as allowed upon the bill as presented, are facts which conclusively demonstrate that the resistance to the demand of the plaintiff was not only not unreasonable, but, on the contrary, reasonable and necessary.
It was strenuously, however, urged by the counsel of the plaintiff that as he had proved his claim by the defendant, she had full knowledge of its justice, and therefore it should have been paid without a reference. To this argument there are twro answers: 1st. The justice of the cause of action of the plaintiff alone, unless the bill as presented gave a proper credit, would not make resistance to the payment of the balance demanded unreasonable. The defendant may have proven the integrity and propriety of the plaintiff’s charges, but either her evidence or some other testimony submitted to the referee satisfied him that the credits or set-off upon or to the bill as presented were over $2,000 greater than the plaintiff’s affidavit attached thereto admitted. The resistance was to the payment of the balance demanded, and its large reduction is the justification of the defense made. 2d. The defendant (the executrix) is the sister of the plaintiff. The claim of the plaintiff was for board of the deceased and his wife (the defendant), and horse keeping during a period of six years (from February 2, 1875, to February 2, 1881); and as the payment and allowance of such an account, involving among other things questions of value, by a sister in favor of a brother out of the residuary of an estate devised to strangers, was sure to be contested upon an accounting, it was not unreasonable that the defendant should for her own protection insist that
For the reasons which have just been given, the motion, so far as it asks for costs generally and for an allowance, must be denied, and with the enunciation of this conclusion we are brought to the second question : Is the plaintiff entitled to referee’s fees, witnesses fees and disbursements ?
It will be conceded that by section 317 of “ The Code of Procedure ” such fees and disbursements were given. That section provided that when a claim against a deceased person’s estate was referred under the provisions of the Revised Statutes, as this one was, that “ the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law.” It will be further conceded that if this provision is unrepealed, or if it has since been re-enacted, that the plaintiff is by this motion entitled to their allowance. In Sutton agt. Newton (2 How. [N. S.], 56) the judge writing this opinion, after a careful examination of the question, came to the conclusion that the provision quoted was still in force. That conclusion, in the light of Miller agt. Miller (32 Hun, 481) and of an unreported case (Dodd agt. Dodd), to which allusion will be presently made, he is asked to reconsider. The request will
Section 317 of the old Code, “The Code of Procedure,” regulated the recovery of costs in an action by or against an executor or administrator, trustee of an express trust, or a person expressly authorized by statute to sue. The same section further declared (a quotation already in part given is repeated to show its connection): “ But this section shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom, by section forty-one of title three, chapter six, of the second part of the Revised Statutes; and whenever any claim against a deceased person shall be referred, pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law.”
The first thirteen chapters of our present code, “ The Code of Civil Procedure,” took effect (chap. 318, Laws of 1877) September 1, 1877. That act (chap. 318, Laws of 1877) was passed May 22, 1877, and it suspended the operation of the present Code, known when first enacted as “ The Code of Remedial Justice,” from May 1, 1877, the date when it originally took effect, to September 1, 1877, as just stated. The general repealing act of “ The Code of Procedure ” was passed June 5,1877, and it declared among other things: “ Section 1. The following acts and parts of acts heretofore passed by the legislature of the state are hereby repealed, to wit: * * * 4. All of the Code of Procedure, except the following sections and parts of sections thereof, to wit: * * * Sections three hundred and eleven to three hundred and twenty-two, both inclusive.”
As then, section 317 of the old Code was expressly retained by the repealing act of 1877, it is clear that, after the first thirteen chapters of our present Code took effect, and until at least the subsequent nine chapters of the present Code,
Part two of the present Oode passed the legislature May 6, 1880. Four days afterwards (May 10, 1880) chapter 245 of the Laws of 1880 was passed. By its first’section (subd. 4, page 369), the old Oode was repealed. If that act had contained nothing more, very clearly the whole of the old section 317 would have been swept away. It did not, however, stop with a simple repeal, but it further provided (pages 374, 375): “ Sec. 3. The repeal effected by the first section of this act is subject to the following qualifications: * * * 8. It does not affect the right of a prevailing party to recover the fees of referees and witnesses and his other necessary disbursements upon the reference of a claim against a decedent, as provided in those portions of the Revised Statutes left unrepealed after this act takes effect.”
The point now distinctly presented is, do the words, “ as provided in those portions of the Revised Statutes left unrepealed after this act takes effect,” refer to “ the fees of referees and witnesses and his other necessary disbursements,” or do they refer to “ the reference,” of which the reservation also speaks % In other words, was it the intention of the clause to retain the provision in old section 317, giving referees’ fees and other disbursements in a reference, which had taken place according to and under the provisions of the Revised Statutes; or did it intend to give or retain referees’ fees only in those cases in which the Revised Statutes gave them % Miller agt. Miller (32 Hun, 481) and Daggett agt. Mead (11 Abb. N. C., 116) hold to the latter view. Sutton agt. Newton (2 How. [N. S.], 56) and Hall agt. Edmunds (67 How., 202) to the former. Which of these two views is correct ?
Certainly, as Miller agt. Miller is a decision of the general term of this department, it should be followed unless it is clearly erroneous. The Code, however, has been so often changed, and those changes are so often hidden in the maze
Prior to an analysis of the saving clause in the repealing act of 1880, which will be presently attempted, it is well to bear in mind what has been established in the preceding part of this opinion, to wit: 1st. By the old Code (§ 317), in references of the character of the present, “ the prevailing party ” was “ entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law.” 2d. When the first thirteen chapters of our present Code took effect, by the repealing act of 1877 (chap. 417, Laws 1877), section 317 was continued in force. 3d. When the law was passed (May 6, 1880) adopting the remaining nine chapters of the present Code, said section 317 was still in force. It also remained in force after their adoption, because the readoption and the re-enactment of old statutes do not, in the absence of a clause repealing the old, or of an express declaration that the new is a substitute for the old, abrogate them, for there is no inconsistency; and the omission to re-enact a part has only the effect to allow such omitted part to stand upon its original enactment. This consequence, and this only, followed from the adoption of part two of the present Code. Sections 1835, 1836 and 3246, were simply redeclarations that all the provisions of said section 317, except the clause providing for the recovery of the disbursements aforesaid, should be in force, but the silence of our law-makers in the chapters referred to did not repeal a clear and positive provision in the old statute upon a subject which the new legislation did not profess to touch. In other words, part two of the Code provided for the recovery of costs “in an action ” against an administrator or executor, but it said nothing, about the old section 317, nor about “ the fees of referees and witnesses and other necessary disbursements ” which such section gave as matter of “right” to “ the prevailing party,” when “ any claim against a deceased person ” had
We now understand the situation of the question under discussion, when four days after the adoption by the legislature of part two of the present Code, that body passed the repealing act of 1880. The effect produced by the adoption of the nine concluding chapters of the present Code was the preservation of the old rule in regard to costs “ in an action ” against an administrator or executor. "For the purpose of maintaining such old rule the existence of the old section 317 was no longer necessary—sections 1835, 1836 and 3246 were full and ample to effect that object. The old section was therefore repealed, but when that was done it became necessary, unless its total repeal was intended, to declare the fate of the remaining portion of such section, in regard to which absolute silence had up to that time been maintained. It was therefore expressly further said that such repeal did “not affect the right of a prevailing party to recover the fees of referees and witnesses and his other necessary disbursements upon the reference of a claim against a decedent, as provided in those portions of the Revised Statutes left unrepealed after this act takes effect.” Can anything be plainer? It was not the power to award “ costs ” in certain cases upon the establishment of sundry other facts, which was to remain unaffected, but the “right” (i. e., the award thereof as a consequence of the recovery), to “ the fees of referees and witnesses and his other necessary disbursements” by the prevailing party. The exact similiarity of the language of the saving clause of the repealing act just quoted with that of section 317 aforesaid proves that the framer of such saving clause penned it with his eye upon the provision of the section we are discussing. The identity of the language used by both can be accounted for upon no
The opinion would close at this point if the counsel of the defendant had not, as he properly did, called the attention of the court to the opinion of judge Bookes in the unreported case of Dodd agt. Dodd (decided by the general term of this department), in which the writer of this opinion as a member of such court concurred. The fact, however, that the judge to whom this case has been submitted has once given an
The explanation is simple. Dodd agt. Dodd was not a case argued orally. It was submitted to the court upon the printed case and points. Mr. D. S. Potter was counsel for the plaintiff, and Mr. P. C. Ford for the defendant. The special term (judge J. Potter presiding) had allowed the plaintiff full costs upon the ground that the claim had been unreasonably resisted. In his points (and they are now before the writer) the counsel for the plaintiff nowhere discusses the question of his right to disbursements under section 317 of the old Code, nor is any reference made to the repealing act of 1877 nor to that of 1880. The aim of the points is to show that “ costs are in the discretion of the court,” and that they were in the discretion of the court because the Revised Statutes gave the court the power to “ adjudge costs as in actions against executors,” and also because the reference was a “special proceeding,” and not “ an action.” He further claimed that “ section 3210 of the Code provides expressly that costs in a special proceeding, not specially regulated by the Oode itself, may be awarded to any party in the discretion of the court. Oosts being in the discretion of the court to give or withhold, the appellate court will not reconsider the question.” The points then proceed to argue that the discretion of the special term was wisely exercised.
The counsel for the defendant argues in his points (they are also before the writer) that costs should not have been allowed because, among other reasons stated, the claim was not unreasonably resisted. There is no allusion to the right to disbursements except this: “ Under the old Code, the prevailing party in such proceedings was entitled to recover his disbursements, even though he might not be entitled to costs;
The case was assigned to brother Bocees to examine. The plaintiff, as has been said, did not claim disbursements apart from costs, and made no allusion to the condition of the law upon the subject. The defendant, also, did not refer to the statutes at all, and only insisted that no disbursements separate from costs could be recovered.because the provision in the old Code giving them had “ been omitted in the new Code.” The learned and careful judge, to whom the case was committed for examination, was thus easily led into error. Through several pages in an exhaustive opinion he demonstrates that the plaintiff should not recover costs. When he reaches the question of disbursements, having been thrown off his guard by the want of presentation of that question by the plaintiff’s counsel, he simply adopts the erroneous view of defendant’s counsel, saying: Tinder the former Code (sec. 317) the plaintiff would have been entitled to recover 1 the fees of the referee and witnesses and other necessary disbursements to be taxed according to law,’ although not entitled to full costs, as in an action (Penkernelli agt. Bischoff, 2 Abb. N. C., 107; Powell agt. Fry, 19 Hun, 600). Such allowance would seem unjust in a case like the present, when the entire contest was over an item found to be fictitious. But the clause of section 317 of the former Code above cited is omitted from section 1836 of the Code of Civil Procedure, which latter section supersedes the former and controls the case now before us (See, also, sec. 3246).” This is all the opinion says upon the question.
The conclusion stated by the judge, that the omission from the new Code was a repeal of the clause giving disbursements in a reference of this character as a matter of “ right,” was erroneous, as has been shown. It looked plausible, and it was in the points submitted an uncontroverted proposition. Errors in judges, into which they are sometimes led by the oversight of counsel, are pardonable. A judge is a man, liable to err,
Under the circumstances narrated the concurrence of the writer in Dodd agt. Dodd was given. Hone of the questions which have been considered were discussed. Hay, the counsel for the plaintiff by his silence, and by his line of argument, conceded that the disbursements apart from the costs were not recoverable ; and a brother judge, who had examined the question fell into an error. The opinion of judge Bookes was carefully read upon the main question discussed, but that in regard to disbursements, substantially conceded in the points, was not considered as it should have been. The case had been entirely forgotten when the opinion in Sutton agt. Newton was written. Had it been remembei-ed, it would not have changed the result, but would only have induced the fuller, and it is hoped more satisfactory, discussion of the question, which has now been attempted.
The motion for costs generally and for an extra allowance must be denied, but the order should provide that the plaintiff shall recover the fees of the referee and witnesses and his other necessary disbursements, to be taxed according to law.