Avery v. Smith

9 How. Pr. 349

• Court: New York Supreme Court
• Decided: September 15, 1853
• Status: Published

Opinion

C. L. Allen, Justice.

It is proper that the defendants should make a motion to confirm the report in this case, and I should be inclined to grant them costs but for the amendment inserted in section 317 of the Code of 1851,1852. Before that it had been decided that such a proceeding was a suit at law, and that costs could be allowed. But the insertion of the provision just alluded to alters the law. It is as follows: “ Whenever any claim against a deceased person shall be referred pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses, and other necessary disbursements, to be taxed according to law.” I think the intention was to exclude all other costs. The section, like many of its fellows, is somewhat dark and obscure, and although it is not at all times easy to bring light out of darkness, yet the small ray afforded by this phraseology in my judgment warrants this construction. Such was the conclusion in Van Sickler agt. Graham, (7 How. 208,) decided since the amendment. I am of opinion, therefore, that I can only allow items there mentioned.

There is no pretence here that plaintiffs have mismanaged or have acted in bad faith. They are clearly assignees of an express trust, within the meaning of the section.

The order, therefore, must be, to confirm the report, and for judgment, that the amount reported, with the fees of referees and witnesses, and other necessary disbursements, be collected out of the funds or estate of Reuben Sanford in the hands of the plaintiffs as his assignees.