Opinion
July 29, 1910.
A.P. Bachman [ John Oscar Ball with him on the brief], for the appellant.
Hirsh Rasquin [ Emanuel Newman and Alfred C.B. McNevin with them on the brief], for the respondents Schreiner and others.
Joseph A. Kennedy, for the respondent special guardian in person.
Thomas F. Murtha [ Peter B. Hanson with him on the brief], for the respondent Peter Kinn.
Peter Kinn, as executor of the last will and testament of Anna Kinn, applied to the Surrogate's Court of Kings county for authority to sell the real property of his testator for the purpose of paying her debts. Upon the return of the citation, several of her creditors appeared in support of the application. It was resisted by William Auer, who had purchased said real property from the devisee thereof within three years after the issuing of letters testamentary. From the decree of the Surrogate's Court granting such application, Auer appealed to this court. (See 136 App. Div. 852.) Upon the argument of the appeal briefs were filed, not only in behalf of the executor respondent, but in behalf of two of the creditors. The order of this court, entered upon its decision, contained these words: "It is hereby ordered and adjudged that the decree of the Surrogate's Court of Kings County so appealed from be and the same is hereby affirmed, with costs." Thereafter an order was entered in the Surrogate's Court, making such order of affirmance the order of that court. Separate bills of costs upon appeal had been previously taxed in favor of the respondent executor, in favor of the respondent creditors, and in favor of the special guardian of an incompetent heir at law who did not appear in the appellate court at all. The amount of these costs was inserted in the order, with a direction that they be paid by the appellant personally to the parties who had taxed the same. The order seems to have been entered without notice. A motion was made to resettle the same by striking out the direction for separate costs, and providing for only one bill of costs, to be paid by the appellant, and directing a retaxation accordingly. This appeal is taken from the order denying such motion, and also from so much of the previous order as awarded separate costs.
In a case of this character costs on appeal are in the discretion of the court. (Code Civ. Proc. §§ 3238, 3239, 3240; Lawrence v. Lindsey, 70 N.Y. 566.) When the order of an appellate court affirms the order of the court below "with costs," although there may be several respondents appearing separately, such order has been construed as allowing only one bill of costs on appeal. ( Van Gelder v. Van Gelder, 84 N.Y. 658; Sweet v. City of Syracuse, 20 N.Y. Supp. 924.) Although the question of the allowance of more than one bill of costs to parties separately appearing in the Surrogate's Court is in the first instance committed to that court, in entering an order upon a remittitur from this court which allows only one bill of costs, no power exists in the Surrogate's Court to allow a greater number. ( Isola v. Weber, 12 App. Div. 267; Matter of New York, West Shore B.R. Co., 28 Hun, 505.) The order of the Surrogate's Court should provide that the costs of the appeal be paid to the respondents jointly. If the executor thinks that such costs should be paid to him alone, or if any embarrassment arises as to the division of the costs, application should be made to this court to make its order more specific in this respect.
The order of the Surrogate's Court of Kings county, dated April 27, 1910, refusing to resettle the order of April 11, 1910, and so much of the order of April 11, 1910, as is appealed from, should be reversed, with ten dollars costs and disbursements, and the proceedings should be remitted to the said Surrogate's Court to proceed in accordance herewith.
HIRSCHBERG, P.J., WOODWARD, THOMAS and RICH, JJ., concurred.
Order of the Surrogate's Court of Kings county, dated April 27, 1910, refusing to resettle the order of April 11, 1910, and so much of the order of April 11, 1910, as is appealed from, reversed, with ten dollars costs and disbursements, and proceedings remitted to the said Surrogate's Court to proceed in accordance with opinion.