Weeks v. Cornwell

I concur, except as to costs. No costs, I think, should be allowed on the appeal or of the motion.

Order reversed and motion denied, with ten dollars costs and; disbursements.

The order directed this sum of money to be paid by the receiver <of the property out of moneys received by him as the rents and income from the property in controversy. The amount ordered to be paid consisted of disbursements expended during the progress of the hearing before the referee for the purpose of showing the value of the different interests of the persons entitled to participate in the partition of the same property. But neither that fact, nor any other which has been made to appear, was authority for this order, for it had not been determined that the parties in whose favor it was made were entitled to recover these expenditures in any form in the action, or to their reimbursement out of the income of the property. Upon the interlocutory judgment following the trial at the Special Term, no direction for the recovery of either costs or disbursements was given, and by the order or decree directing the reference upon which the disbursements were made, the judgment was modified “ with costs of all parties to be paid out of the funds, and such allowances as may be awarded on the final hearing on such report of said referee by the Special Term.” This award of costs included no part of these disbursements, but it was restricted, so .far as it was made operative, alone to the costs of the appeal, and by no judgment or direction whatever had the right been created to charge these disbursements against either of the parties to the action or any fund existing in it. Their disposition necessarily *580depended upon the order or direction which might be given upon-the hearing or confirmation of the report made by the referee. And when that may be given they will form so much of the costs-to be recovered by the judgment and obtained under its authority. No precedent whatever has been found for such a direction as is contained in the order, and if it could be it should not be followed, on account of the injustice which would not fail to arise in the disposition of money subject to the order of the court in like manner. It is no answer to the objections which have been urged that the persons in whose favor the order has been made may be entitled to a larger proportion than the amount directed to be paid of the rents and income of the property, for that cannot surely be ascertained until this case has been finally decided and determined. But without depending very much upon this circumstance, it is sufficient to say that the right to recover costs is to be determined by the judgment finally to be entered in the action, and until such a judgment has been recovered, an order for the payment of cost» or disbursements should not be made. If it could be sustained, as this order has been made, it might equally be so as to all the disbursements made by the other parties, in the eourse of the litigation, and also extended so as to include their probable costs, and that would very manifestly be an improper thing to do.

The order from which the appeal has been taken should be reversed, and the motion should be denied, with the usual costs and disbursements.