Fisher v. Bennett

21 Misc. 178, 47 N.Y.S. 114

Opinion

Russell, J.

Since the amendment of 1893 to section 2718 of the Code of Civil Procedure the referee has power to award costa against an executor on a claim referred and judgment is entered on the report of the referee. Although section 1836 apparently gives power to the court alone to award costs, it must be construed in conjunction with section 2718. Whitcomb v. Whitcomb, 92 Hun, 446; Winne v. Hills, 91 id. 93; Niles v. Crocker, 88 id. 314, 315; Ellis v. Filon, 85 id. 489.

The merits of the original award of costs are not before this court and it must be conceded that those costs were rightly awarded. The case presented shows that it is one of those in which an additional allowance is proper if the plaintiff is entitled to costs at all. An additional allowance of $150 is, therefore, granted.