PINKERNELLI v. BISCHOFF

PINKERNELLI v. BISCHOFF. N. Y. Supreme Court, First Department; Chambers, December, 1876. Executors akd Administrators.—Costs. Where an executor refused to pay a claim for board and necessaries furnished to his testatrix on the ground that it was exorbitant, and upon a reference, the amount was reduced nearly one-half. Held, that the claim was not unreasonably resisted, and the plaintiff was only entitled to the fees of the referee and necessary disbursements. Motion for confirmation of referee’s report and for costs. This action was brought against the defendant as executor, to recover the sum of $440.65 for board and necessaries furnished to his testatrix, a married woman. The executor refused to pay the claim because he considered it exorbitant. The case was sent to a referee, who reported only $242 due. S. H. Stuart, for motion. F. Leary, opposed. [MAJORITY — Brady, J.] Brady, J. In this case no exceptions were filed or taken to the referee’s report. There is little doubt of the justice of the referee’s conclusions. The only question which appears to be litigated here is that in reference to costs. The claim herein was not unreasonably resisted. It was properly contested, and it was reduced. The plaintiff is duly entitled to recover, therefore, only the fees of the referee and necessary disbursements to be taxed (Code, § 317). Ordered accordingly, and that the report be confirmed.