Weeks v. Coe

This is an appeal from an order granting five per cent allowance on the amount of plaintiff’s recovery in an action against an executor. The appellant claims that the order should be reversed, because there was no certificate of the referee under section 1836 of the Code of Civil Procedure that the claim was presented to the executor and payment unreasonably resisted or neglected.

It appears by the moving affidavits that the claim was presented to the executor and rejected, and an offer to refer was accepted. A judgment was entered on the report of the referee; an order for ■a new trial was entered and such order reversed by this- court, and a new order of reference was made to Mr. Odell. He reported in favor of the plaintiff, with costs. He also certified that in his opinion the case was a difficult and extraordinary one within section. 3253 of the Code of Civil Procedure, and that the plaintiff was entitled to an additional allowance.

As the referee gave judgment for the claim, with costs, we cannot presume that he gave costs without complying with the provisions of section 1836 of the Code of Civil Procedure as to a certificate. Then we must assume that he gave the required certificate of unreasonable resistance or neglect.

The defendant presented no affidavits in opposition to the motion and did not allege that there was no certificate under section 1836. Hence it does not appear that any such objection was made at Special Term and it cannot now be raised on appeal.

*312The allowance authorized by section 3283 is additional to the costs, and it not appearing that the costs were improperly allowed by the referee, it was within the discretion of the court at Special Term to grant the additional allowance, and, in our opinion, the the order was properly made.

The order should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.