(78 Hun, 309.)

#### ADAMS et al. v. OLIN et al.

(Supreme Court, General Term, First Department.

May 18, 1894.)

Claims.against Decedents—Refekenoe—Costs.

Under the amendment of Code Civ. Proc. § 2718, providing that on the entry of an order referring a disputed claim “the proceeding shall become an action,” a proceeding pending- under a reference theretofore ordered becomes an action on the taking effect of the amendment, and costs may be allowed accordingly.

Appeal from special term, New York county.

Proceeding by George H. Adams and another, as executors, against Stephen H. Olin and another, as executors. From so much of two orders as allowed defendants costs as in an action, plaintiffs appeal.

Affirmed.

For former reports, see 16 N. Y. Supp. 131, 18 N. Y. Supp. 899, and 21 N. Y. Supp. 1122.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Geo. H. Adams, for appellant.

G. L. Rives, for respondent.

VAN BRUNT, P. J.

This was begun as a special proceeding under the statutes to determine a disputed claim against an estate. The matter was referred to a referee to hear and determine, and after three trials, and three hearings at the general term, a judgment for a large amount was recovered by the claimants. The defendants then appealed to the court of appeals, and before argument the Code, in respect to these proceedings, was amended. It was provided by section 2718 of the Code, as amended, that:

> “If the executor or administrator doubts the justice of any claim presented against the estate he may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons to be approved by the surrogate. On filing such an agreement and approval in the office of the clerk of the supreme court in the county in which the parties or one of them reside an order shall be entered by the clerk referring the matter in controversy to the person or persons so selected. On the entry of such an order the proceeding shall become an action in the supreme court. The same proceeding shall be had in all respects * * * as if the reference had been made in an action in which such court might by law direct a reference. In determining the question of costs the referee shall be governed by-secs. 1835 and 1836 Of this act.”

The sections referred to relate to the granting of costs against an executor or administrator.

In October, 1893, the cause was argued before the court of appeals, and in November the court, of appeals reversed the judgment *dif)*
      *132N. Y. 150, 35 N. E. 448); and on the 1st of December an order was entered in this court, upon the remittitur from the court of appeals, making the judgment of that court the judgment of this court. The plaintiffs thereupon withdrew their claim, and stipulated that judgment should be entered against them, dismissing the claim, and leaving the question of costs—whether taxable or not—to the court. An application was thereupon made for a judgment dismissing the plaintiffs’ claim, and awarding restitution, and granting costs and an extra allowance. This motion being granted, costs were taxed by the clerk; and a motion being made for retaxation, upon exceptions, the same was denied. From these orders the present appeal is taken.

It seems to us that, by force of the provisions of section 2718 of the Code, when such section went into effect this proceeding ceased to be a special proceeding, and became an action, and was to be treated as such in respect to all subsequent proceedings. No question could have arisen, had a new order of reference been made, that from the entry of such order the provisions of the Code would apply. The fact that the condition precedent of an order of reference had already been made upon a claim presented and disputed would not prevent the operation of the statute. Such being the case, the defendants were entitled, as matter of right, to costs, upon their successful defense of the claim presented against the estate which they represented. We think that it was the intention of the legislature, in reference to these proceedings, to make them exactly parallel to those which take place in an action after a reference has been ordered, and that the only discretion which is vested in the referee, in regard to costs, is in respect to those which might be allowed to a plaintiff against an executor who had not unreasonably resisted a claim against his estate. The orders should be affirmed, with $10 costs and disbursements. All concur.