¶1This was a proceeding under section 2718 of the Code of Civil' Procedure, brought by Carrie Kuhn to recover for personal services-rendered to Rosa Raab, deceased, Mrs. Raab’s executor rejected the claim, and thereupon it was referred — by agreement and order — to a referee to hear and determine.
¶2We have gone over the evidence adduced before the referee, and we think it justified him in finding, as he did, that the services specified in the claim were rendered, and that they were so rendered with the expectation, and upon the understanding, that Mrs. Raabwould compensate Mrs. Kuhn therefor. The circumstances under which the services were rendered were such as to warrant the implication of a promise to pay the claimant their reasonable value. The • questions upon this head, both of fact and law, were carefully considered by the referee, and we see nothing in his opinion upon the merits which calls for criticism.
¶3We think, however, that his certificate allowing costs against théexecutor was unwarranted. ' Costs can be allowed against an executor, in such a proceeding as this, only when the referee certifies-that the payment of the claim was unreasonably resisted or neglected. (Code Civ. Proc. §§ 2718, 1835, 1836; Whitcomb v. Whitcomb, 92 Hun, 443, citing Matson v. Abbey, 141 N. Y. 179.) Ho-such certificate was given here. Hor could the referee have properly so certified, for the claim—when and as presented to the-executor — was certainly a doubtful one. Mrs. Kuhn apparently-made no request for. payment during Mrs. Raab’s lifetime, and her-original demand upon the executor was materially reduced, namely,, from $1,300 to $992.50. (Anderson v. McCann, 14 App. Div. 365; Ryan v. McElroy, 15 id. 216.) It is conceded that the disbursements were properly allowed.
¶4*35The judgment should accordingly he modified by striking out the allowance, of costs, and as modified affirmed, without costs of this appeal. ' '
¶5Van Bbunt, P. J., Rumsey, O’Bbien and Ingbaham, JJ., concurred.
¶6Judgement modified by striking out the allowance of costs, and as modified affirmed, without costs of appeal.