Bertholf v. Carr

The claim of the appellant against the respondent, as executor, was referred to a referee under the statute. The claimant recovered a judgment. She concedes on this appeal, that she was not entitled to costs, but insists that she should have been allowed the fees of the referee and witnesses and other necessary disbursements. The question thus raised has been passed upon adversely to the contention of the appellant by the general term of the Third department, which held in the case of Miller v. Miller, 32 Hun, 481, that section 3246 of the Code of Civil Procedure is a substitute for section 317 of the old Code, and withholds from the successful claimant the right to disbursements which he had under the latter section. There was no ■error in the action of the court below, and the order there made should be affirmed.