McDermott v. Hennesy

Per Guriam:

Without deciding whether this application should be called a special proceeding or a proceeding in the foreclosure action, we are satisfied that in either case the views expressed by Judge Balcom, in Elwell v. Robbins (43 How., 108), as to costs, are correct. There is no right to grant an extra allowance. (See also, Rens. and Sara. R. R. Co. v. Davis, 55 N. Y., 145.) The only costs which can be allowed are those particularly specified in the Code, viz., motion fees and referee’s fees. The hearing before the referee, is not a trial.

The only costs, therefore, which can be allowed are ten dollars costs of the motion to confirm the referee’s report and his fees, and ten dollars costs of order appointing referee, if that was allowed in that order. The order appealed from must be modified accordingly.

The question involved is, perhaps, new, and no costs of the appeal are allowed to either party.

Present — LeabNEd, P. J., Booees and BoaedmaN, JJ.

Orders reversed and order granted to be settled by LeaeNed, P. J., as per his memorandum. No costs of appeal.