Fisher v. Bennett

Decided August 15, 1897

New York Supreme Court · decided 1897-08-15

<p>' Claims against decedent’s estate — Referee may award costs.</p> <p>The provisions of section 1836 of the Code of Civil Procedure, in substance, that where an executor or administrator unreasonably resists or neglects payment of a claim made against the estate of a decedent, or fails within the statutory period to hie a consent that the claim be referred, “ the court may award costs against the executor or administrator," are to be construed in connection with section 2718 of the same Code; and since the amendment, made in 1893, to section 2718, a referee has the same power as. the court to award costs against an executor or administrator upon a claim referred.</p>

Cited by 4 later decisions — most recently January 1935

4 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1897-08-15

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Russell, J.

¶1Since the amendment of 1893 to section 2718 of the Code of Civil Procedure the referee has power to award costa against an executor on a claim referred and judgment is entered on the report of the referee. Although section 1836 apparently gives power to the court alone to award costs, it must be construed in conjunction with section 2718. Whitcomb v. Whitcomb, 92 Hun, 446; Winne v. Hills, 91 id. 93; Niles v. Crocker, 88 id. 314, 315; Ellis v. Filon, 85 id. 489.

¶2The merits of the original award of costs are not before this court and it must be conceded that those costs were rightly awarded. The case presented shows that it is one of those in which an additional allowance is proper if the plaintiff is entitled to costs at all. An additional allowance of $150 is, therefore, granted.