Kate Lounsbury, Respondent, v. Mary E. Hart Sherwood, as Executrix, and Charles C. Hart, as Executor, etc., of James Hart, Deceased, Appellants

Kate Lounsbury, Respondent, v. Mary E. Hart Sherwood, as Executrix, and Charles C. Hart, as Executor, etc., of James Hart, Deceased, Appellants. Exceptions are necessary to a review of facts — a referee appointed to hear a disputed claim may allozo an amezidmeni thereto■—a cezdificate that the claim zoas “unreasonably resisted or neglected” is necessazry to the allowance of costs, ziot of disbuz'sements. Questions of fact cannot be reviewed upon an appeal from a judgment entered upon a decision unless exceptions were filed thereto. A referee appointed to hear and determine a disputed claim against an estate may, under section 2718 of the Code of Civil Procedure, giving him the same power as a referee in an action, allow the claimant to amend his claim by increasing the amount asked for. The referee has no power to allow the claimant costs in the event of his recovery, unless he grants the certificate required by section 1886 of the Code of Civil Procedure, that the claimant presented his claim to the executors “ and that the payment thereof was unreasonably resisted or neglected.” A statement in the referee’s report, that the claimant is entitled to recover a certain sum, “ with the usual costs and disbursements,” is not equivalent to the certificate. The certificate mentioned is not necessary to enable the claimant to recover his disbursements. Appeal by the defendants, Mary E. Hart Sherwood and another, as executors, etc., of James Hart, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 10th day of June, 1899, upon the report of a referee, and also from an order made at the Westchester Special Term, bearing date the 27th day of May, 1899, and entered in said clerk’s office, confirming said report and awarding costs against the defendants. Eugene E. Travis, for the appellants. John LL. Baxter, for the respondent. [MAJORITY — Goodrich, P. J.:] Goodrich, P. J.: 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. Por 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.