274 A.D. 910 | N.Y. App. Div. | 1948
Cross appeals by plaintiffs and certain defendants in an action to compel the performance of a contract made by a husband and wife in relation to the disposal of their properties upon the death of the survivor. Judgment requiring the representative of the wife and the next of kin, and distributees of the wife under the will dated December 6, 1944, to perform her contract with her husband as manifested by the joint will of the husband and wife of April 25, 1942, unanimously affirmed, with one bill of costs to parties filing briefs, payable out of the estate. The decree is in accord with sound authority. (Hermann v. Ludwig, 186 App. Div. 287, affd. 229 N. Y. 544; Rastetter v. Hoenninger, 214 N. Y. 66.) This being an action in equity, the granting or withholding of costs (Civ. Prac. Act, § 1477) rested in discretion. Subdivision 6 of section 1470 of the Civil, Practice Act, invoked by the plaintiffs, relates, to actions at law. (11 Carmody on New York Pleading and Practice, § 70.) Present— Carswell, Acting P. J., Johnston, Adel, Sneed and Wenzel, JJ.