Smith v. Randall
New York Supreme Court
MOTION for an order allowing costs against an executor, to be paid out of the estate. There has been a reference, and a report in favor of the plaintiff, and a. certificate by the referee, showing the presentment of the demand to the executor, an offer to refer, and that the executor refused to refer, and rejected the claim. And thereupon this suit was brought.
1Opinion of the CourtHardih, J.
The defendant opposes this motion, on the ground that no order was necessary to enable, the plaintiff to recover costs.
This question has been discussed in several cases ; and it is now quite well settled that an application must be made to the court, and that the referee has no power to pass upon such question. (9 Barb., 388. 12 How. Pr., 301, 353. 14 id., 481. 23 id., 137. 4 Ab., N.S., 399.)
I am aware that some cases are to be found, construing section 317 of the Code in such a manner as to render a motion necessary only in cases where it is sought to charge the costs upon the executor &c.…
2Cases cited2 opinions
- Fort v. GoodingNew York Supreme Court · 1850
- Howe v. LloydNew York Supreme Court · 1870