Opinion
December, 1899.
Isaac N. Miller, for motion.
George W. Stephens, opposed.
I am constrained to follow the directions of the remittitur herein, and cannot pass on the question whether or not there should have been a substitution of the administrator cum testamento annexo for the executors, petitioning herein, before the proceedings in the Court of Appeals were had and the default there taken, although it is possible that section 756 of the Code would not apply to this proceeding because of the provisions of subdivision 6 of section 3347. The order of the Appellate Division, therefore, will be effectuated by the judgment and decree of this court, in accordance with the remittitur from the Court of Appeals, and costs and disbursements in those courts will be allowed and taxed against the petitioning executors as such upon the settlement of the decree. Such decree may be presented settling the account of the executrix as filed. I shall not, however, allow her costs in this court, but only her disbursement for referee's fees herein, namely, $180. This is because the petitioners have been defeated on a technicality. (Clason v. Baldwin, 13 N.Y.S. 371, and proceedings in this accounting.) In the case cited it is said that "the facts found by the referee" established prima facie the liability of the executrix herein to the claim sought to be enforced against her in this proceeding, and, under the circumstances, I do not feel that the petitioning executors should be charged with costs in this court. The directions of the appellate courts only cover costs in those courts. Matter of Water Comrs. of Amsterdam, 104 N.Y. 677; Broadway Sav. Inst. v. Pelham, 148 id. 737.
Decreed accordingly.