In re Muller , 284 N.Y.S. 195 ( 1935 )

O’Malley, J. (dissenting).

The discretion vested in the court under the provisions of section 475 of the Judiciary Law and section 1492 of the Civil Practice Act seems to us to have been properly exercised. The appellant attorney opposed sending the matter to an official referee and thus avoiding payment of fees. The respond- , ent asked specifically that the matter be referred to an official referee.

In the case of Ward v. Ward (67 App. Div. 121), relied upon by the appellant, all costs were imposed upon the successful party.

In Couch v. Millard (41 Hun, 212) costs were awarded to both parties and the court merely held that in such a case the unsuccessful party should not be awarded costs payable out of the recovery of the successful party. It was expressly recognized that this was not an absolute rule. The court, however, stated that in the circumstances presented nothing was called to attention which would justify the awarding of costs to the unsuccessful party.

Here the attorney finally presented a claim in the sum of $23,000. He was allowed but $9,000. Therefore, neither party was entirely successful.

Section 1492 of the Civil Practice Act provides that costs “ may be awarded to any party, in the discretion of the court.” To follow rigidly the broad rule of the cases relied upon by the appellant would result in depriving the court of all discretion under any circumstances to award costs to a party who had sustained his position in part, though not entirely. A discretion so circumscribed would cease to be discretion.

It follows, therefore, that the order should be affirmed, with costs to the respondent.

Untermyer, J., concurs.

Order, so far as appealed from, modified by striking out the provision covering payment by the appellant of one-half of the referee’s fee and by inserting therein a provision awarding costs to appellant, and as so modified affirmed, with twenty dollars costs and disbursements to the appellant. Settle order on notice.