Hopkins v. Lott , 6 N.Y. St. Rep. 12 ( 1886 )

Pratt, J.:

This was a matter arising upon a claim by'plaintiff against the estate of Sarah E. Lott, deceased, which was presented to and rejected by the defendant administrator, who at the same time offered to refer, and the claim was accordingly referred on consent of both parties and with the approval of the surrogate.

The claim was for $1,000 damages for breach of a covenant of quiet enjoyment in a lease. The referee reported that plaintiff was entitled to six cents damages. The referee’s fees were sixty dollars, which plaintiff refused to pay and defendant took up the report and moved at Special Term for costs. The court rendered judgment for the plaintiff for six cents damages, and in favor of the defendant for costs and disbursements.

It seems to be settled that this proceeding is not an action but is a special proceeding. (Mowry v. Peet, 88 N. Y., 456; Roe v. Boyle, 81 id., 305.) We think the order made below was right. The Revised Statutes, under which the reference was had, provides that the “court may adjudge costs as in actions against executors and administrators.” Then comes the provision of the Code of Civil Procedure (§ 3246) as follows: “ In an action brought by or against an executor or administrator in his representative capacity, * * * costs must be awarded as in an action by or against a person' prosecuting or defending in his own right.”

On the question of costs the defendant here was the prevailing party. In this special proceeding the costs are to be adjudged as in an action prosecuted or defended by a person in his own right. The Code of Civil Procedure was intended to provide a complete system upon the subject of costs (see secs. 3246, 3228, 3229, 3230 and 3256), which seem to cover the case in hand. The confusion seems to have arisen from the fact that the Code of Civil Procedure refers to actions when treating of costs, but when it is seen that this particular proceeding is assimilated to an action in regard to costs there seems to be no difficulty in the question.

This view is in consonance with the general purpose of the legislature in allowing costs, which is to make the burden of litigation fall upon the party who causelessly invokes it.

Order affirmed, until costs.

Barnard, P. J., concurred; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.