15 Abb. N. Cas. 452 | N.Y. Sup. Ct. | 1885
After the presentation of the claim, to recover which this suit was instituted by the plaintiff, to the defendant it was ,agreed “ that an action should be brought instead of a reference with the view to a speedier trial, which was desirable for all parties, and the action was brought upon that understanding in lieu of a reference, and not because the administratrix did not offer or was not willing to refer.”
The extract just quoted from the affidavit of the counsel for the defendant contains the agreement under which this action was brought, and must be considered in disposing of the motion which the plaintiff has made for costs.
Section 3246 of the Code of Civil Procedure, in connection with sections 1835 and 1836, prescribes the rule for the recovery of costs, “ m an action brought by or against an executor or administrator, in his representative capacity; ” but does not affect the allowance of costs and disbursements in a reference under the Revised Statutes. The contrary of this was affirmed in Miller agt. Miller (32 Hun, 481), but certain provisions of the law were, as it seems to me, so clearly overlooked that the decision cannot be followed without the reassertion by the general term of tho conclusion therein stated, after its attention has been again called to the subject.
By section 317 of the Code of Procedure it was declared that in a reference under 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.”
Chapter 417 of the Laws of 1877 repeals (sec. 1, sub. 4) “ all of the Code of Procedure, except the following sections and parts of sections thereof, to wit: “ * * * Sections three hundred to three hundred and twenty-two, both inclusive.” This makes it clear that the repealing act of 1877 left section 317 of the Code of Procedure intact, and consequently, as provided thereby in a reference under the Revised Statutes of a claim against a dead person’s estate, the
In construing the aet of 1880 it should be borne in mind, as has been shown, that when that act took effect, though the Code of Procedure had been in part repealed by the act of 1877, yet section 317, which 'gave the disbursements in the cases excepted out of the repealing act of 1880, was left unrepealed and in full force. When, therefore, such act (that of 1880) further repealed the same Code, but declared such repeal should “ not affect the right of a prevailing party to recover the fees of referees and witnesses, and his other necessary disbursements” in a reference of a claim against a deceased person’s estate under the Bevised Statutes, such declaration was only another mode of providing that the part of section 317 of the Code which gave such disbursements was unaffected by the repealing act of 1880, as it was by that of 1877. Very clearly, then, so much of section 317 of the Code of Procedure as gives disbursements in a recovery against the estate of a deceased person upon a reference under the Bevised Statutes is not repealed, but is in full force and effect (See Hall agt. Edmonds, 67 How., 202).
As, by agreement of the parties, the present action was “ in lieu of a reference,” that is to say, its substitute, it follows that the plaintiff, who was “ the prevailing party,” is, by the unrepealed part of section 317 of the Code of Procedure, “ entitled to recover the fees of the referee and witnesses, and other necessary disbursements to be taxed according to law.”
The defendants, however, not only rejected the entire claim of the plaintiff, but set up a counter-claim against him for the sum of $2,624.55, for which sum she asked an affirmative judgment against the plaintiff, “ with interest thereon from March 3, 1877, besides costs of this action.” The defense then, which the defendant made to the action, was not only a resistance to the claim of the plaintiff, but also the prosecution of an independent and distinct demand against him for a large amount. If the defendant had sought to recover that sum by an action against the plaintiff and had failed, she would have been compelled to pay costs. The counter-claim set up in the answer was really an independent action against the plaintiff, and its resistance was the trial of another issue than that presented by his demand against the defendant.
The result of my examination is, that the motion for costs to the plaintiff must be granted. Apart from the reason hereinbefore presented for allowing disbursements, if the action in which the motion is made is not to be deemed a substitute for a statute reference, but as an action in which the rule prescribed by section 3246 of the Code of Civil Procedure applies, the motion should still prevail. The attempt by the defendant to recover through the suit brought against her a large counter-claim against the plaintiff, and its failure brings her within the cases provided for by section 1835, in which costs may be awarded to the plaintiff.