In re the Estate of Moran

6 Mills Surr. 543, 60 Misc. 298, 113 N.Y.S. 276

Opinion

Ketcham, S.

Upon appeal from the decree of distribution, the Appellate Division has directed that its reversal of the decree be “ with costs to the appellant.” Costs, in the order to be entered upon the remittitur, can only be awarded according to. the special directions made upon the appeal (Code Civ. Pro., § 2558, subd. 1) ; and the direction quoted contemplates only the costs of the appeal in the appellate court. Among the haphazards of the Code it appears that, upon reversal of a surrogate’s decree, “ with costs ” and without specification of disbursements, the surrogate has no power to include disbursements in his taxation of costs. Matter of Steencken, 58 App. Div. 85. Unless, therefore, the appellant shall receive further direction, the order proposed will include only the costs for making and serving the case and the costs before and after argument.

Decreed accordingly.