Opinion
July Term, 1900.
Eugene B. Travis, for the appellants.
John H. Baxter, for the respondent.
The plaintiff was housekeeper for James Hart from June, 1892, to the time of his death in June, 1897, at the compensation of seventeen dollars per month, and has been fully paid therefor. For some years prior to Hart's decease he was afflicted with ulcers and sores on his legs, and during the year preceding his death the plaintiff, at his request, rendered assistance in washing and bandaging his sores, for which he promised to pay her in addition to her remuneration as housekeeper. After his death she received her last month's wages as housekeeper, giving a receipt in which it was stated that the amount was "in full to date, from James Hart's estate." Subsequently she rendered a bill to the defendants for 263 weeks' services, in "bandaging the legs" of the deceased, at one dollar per week. The executors declined to pay the amount, and Mr. Gibney was appointed a referee to hear and determine the matter in controversy. At the trial the referee allowed an amendment of the claim, making it seven dollars per week instead of one dollar, and filed a decision allowing the plaintiff one dollar per day for the year preceding Hart's decease. From the judgment entered thereon the executors appeal.
No exceptions were filed to the decision, and we cannot review the facts. ( Elliott v. Van Schaick, 26 App. Div. 587; Price v. Levy, Id. 620.)
The defendants contend that the referee had no power to allow an amendment of the plaintiff's claim. Section 2718 of the Code of Civil Procedure provides that on a reference of this character the referee shall have the same powers as if the reference had been made in an action where a reference is authorized; and, under section 723, there is no question of the right to allow such an amendment.
The allowance of costs, however, was not properly made. Section 1836 provides that costs may be allowed in proceedings of this character where it appears that a creditor has presented his claim to the executors, "and that the payment thereof was unreasonably resisted or neglected," and "where the action is brought in the supreme court, the facts must be certified by the judge or referee before whom the trial took place." There is no such certificate in the record. The report only states that the plaintiff is entitled to recover $365, "with the usual costs and disbursements." This is not a certificate that the executors "unreasonably resisted or neglected" the payment of the claim, and the plaintiff is not entitled to recover the costs of the reference.
The costs, however, in a proceeding of this character do not include the disbursements. In a well-considered and unanimous opinion by the old General Term of the fourth department ( Niles v. Crocker, 88 Hun, 312), Mr. Justice MARTIN writing, it was held that the creditor was entitled to recover his disbursements in a proceeding of this character; that the certificate mentioned by section 1836 as to unreasonable refusal or neglect to pay was required only to enable the party to recover costs, and that it was not required for a recovery of disbursements. To the same effect is Hallock v. Bacon (64 Hun, 90).
The judgment should be modified by striking out the allowance of costs, but not of disbursements, and as modified affirmed, without costs of this appeal to either party.
All concurred.
Judgment modified by striking out the allowance of costs, but not of disbursements, and as modified affirmed, without costs of this appeal to either party.