FORM No. 1679. Executor or administrator unreasonably resisted or refused to refer.82 That the demand on which the plaintiff recovered herein was duly presented to the defendant as executor [or, administrator] within the time limited by a notice, published as prescribed by law, requiring creditors to present their claims [or, although no notice to present claims was published as prescribed by law], and that the payment thereof was unreasonably resisted or neglected [or, and that the defendant did not file the consent provided in section 1822 of the Code of Civil Procedure at least ten days before the expiration of six months from the rejection of said claim.86] FORM No. 1680. School officer or supervisor's acts, in good faith, where questions might have been settled by State Superintendent.87 That it appeared on the trial of this cause, that the defendant acted in good faith in his proceedings as trustee of School District No. , in [or, as supervisor of] the town of which this action was brought. 82 N. Y. Code Civ. Pro., § 1836. See, also, Form of order to same effect, No. 1558, post. It is not the practice to submit this question to the jury. Facts not in evidence on the trial may be shown to the judge by affidavits. It is not necessary to certify the evidence. Ely v. Taylor, 42 Hun, 205; app. dism'd, 106 N. Y. 666. The propriety of the referee's certificate cannot be reviewed at Special Term, but only upon an appeal from the judgment. Domeyer v. Hoes, 99 App. Div. 294, 90 N. Y. Supp. 1074. The certificate is as to the fact of reasonable resistance; the costs folow as of right. Brainerd v. DeGraef, 29 Misc. 560, 61 N. Y. Supp. 953. Such certificate may be given after the report has been delivered and filed. Id. Without a certificate no costs can be awarded. Germ.-Am. Prov. Co. v. Garrone, 73 App. Div. 409, 77 N. Y. Supp. 134; Darde v. Conklin, 73 App. for Div. 590, 77 N. Y. Supp. 39. But 83 Beecher v. Duel, 14 Wkly. Dig. 109. Compare Darling v. Halsey, 2 Abb. N. C. 105. 84 Nichols . Maloughney, 85 App. Div. 1, 82 N. Y. Supp. 949; Clarkson v. Root, 18 Abb. N. C. 462. 85 Field v. Field, 77 N. Y. 294; Horton v. Brown, 29 Hun, 654; Brinker v. Loomis, 43 id. 247. 86 Code Civ. Pro., § 1836, as amended in 1897. Either unreasonable resistance or neglect, or failure to file consent, is sufficient. Paney v. Millspaugh, 95 App. Div. 208, 88 N. Y. Supp. 565; Ballantyne v. Steenwerth, 79 App. Div. 632, 80 N. Y. Supp. 37. 87 Sustained in Clark v. Tunnicliff, 38 N. Y. 58, 4 Abb. Pr. (N. S.) 451; N. Y. Code Civ. Pro., § 3244. FORM No. 1681. Official act,88 etc., as a ground for increased costs. That it appeared on the said trial that the defendant was a public officer, appointed under the authority of the State, and this action was brought by reason of an act done by him by virtue of his office [or, an alleged omission by him to do an act which it was his official duty to perform]. FORM No. 1682. Notice of motion (or order to show cause) for costs,89 or for an allowance. [As in Form 815, p. 1171, mentioning the pleadings, minutes or other record of the proceedings, referee's report, if any, etc., and any affidavits served; and moving before the Special Term, and stating relief, as thus:] For a separate bill of costs:] for an order [or, why an order should not be made] directing the clerk to tax a separate bill of costs herein for the defendant W. X. against the plaintiff. For an allowance:90] for an order [or, why an order should not be made] granting the plaintiff [or, defendant] an extra allowance [if the motion is not founded on a money verdict, may add: upon the value of the subject-matter involved in this action or indicate it more closely].91 88 N. Y. Code Civ. Pro., § 3258. These facts, however, usually appear by the record, and if so, a certificate is unnecessary. Smith v. Cooper, 30 Hun, 395. 89 Costs are not allowed, of course, to a defendant succeeding on a plea of infancy (Yamato Trading Co. v. Hoexter, 44 Hun, 491), nor to a plaintiff succeeding in some actions against savings banks, but are in the discretion of the court. N. Y. Banking Law (L. 1892, chap. 689), § 115. 90 Move before final costs are adjusted. N. Y. Gen. Rule No. 45. The court may open a taxation of costs in order that the motion for an allowance may be made. Thompson r. St. Nich. Bank. 54 Hun. 393, 7 N. Y. Supp. 491. If the application is made at the trial in the presence of the adverse party, previous notice is not necessary. Otherwise on an inquest or default. Notice was held unnecessary where the application was made to the judge who tried the case, on the day follow ing the trial. Mantner t. Pike, 32 Misc. 500, 65 N. Y. Supp. 563. Compare Woodruff v. N. Y., etc., R. R. Co., 10 N. Y. Supp. 305, 31 St. Rep. 7. 91 If a pecuniary value upon which to compute the allowance did not appear on the trial, it may be shown by affidavits (Hayden v. Matthews. 4 App. Div. 338, 38 N. Y. Supp. 905: aff'd, 158 N. Y. 735; and see cases in notes to Form 1685; but when affidavits are thus necessary, it is usu ally better to require the applicant to move on notice. The clerk cannot take proof of the value. Newton r. Reid, 24 Wkly. Dig. 472. If the motion is made before a judge who did not hear the cause, the affidavit should state the nature of action; and of the defense; and the number of sessions and length of trial, as well as the proceedings rendering the cause difficult and extraordinary and the difficulty of the ques tions of law. See Wilber r. Williams, 4 App. Div. 444, 38 N. Y. Supp. 893. Notice for hearing at a court held FORM No. 1683. Referee's certificate upon application to court for extra allowance. [Title of court and cause.] THIS IS TO CERTIFY that the above entitled action required a long and tedious examination of many accounts, vouchers, letters, correspondence, and other data, extending over many years, and was complicated by the fact that most of the transactions occurred fifteen to seventeen years ago, 92 and was difficult and extraordinary within the meaning of section 3253, and that an extra allowance in the full amount would be reasonable under the circumstances of this case. Dated, 19 . [Signature] FORM No. 1684. Referee. Attorney's affidavit upon application to court for extra allowance after trial by referee.93 ; the 19 19 the hearings [After briefly detailing the history of the action up to the beginning of the hearings, may continue somewhat as follows:] The first session before the referee was held cause was finally submitted to him having continued over [a year]. Some [six hundred and eleven] pages of testimony were taken, while the number of exhibits introduced by both sides ran into the [hundreds]. final summing up, deponent found it necessary to submit to the referee a brief covering some [seventy-nine] type-written pages. The referee has found in defendant's favor upon every point, ordering judgment for the defendant on the merits. On There are various features of this action which, in deponent's opinion, show it to be "difficult and extraordinary" within the meaning of the Code: the enormous sum of money sought to be recovered; the delay of over fourteen years which plaintiffs permitted to intervene before proceeding to trial, and which certainly resulted in the defendant having "trouble with reference to making the necessary proof" (to quote Haight, J., in the latest case in the Court of Appeals, 178 N. Y. at p. 410) regard by the judge who tried the cause (Toch t. Toch, 9 App. Div. 501, 41 N. Y. Supp. 353: Lottimer v. Livermore, 6 Daly, 501), unless he is not within the district, etc. Hun r. Salter, 92 N. Y. 651. This is a rule of practice, merely, and is waived if not asserted (Wiley v. L. I. R. R. Co., 88 Hun, 177, 34 N. Y. Supp. 415); and will not be insisted upon when another judge can pass upon the appli cation with equal knowledge. Wilber r. Williams, 4 App. Div. 444, 38 N. Y. Supp. 893. 92 See Standard Trust Co. v. N. Y. C. & H. R. R. R. Co., 178 N. Y. 407, at p. 410. 93 From an unreported precedent, where an allowance of the statutory limit was made. See note 95 to next Form. ing transactions which had occurred seventeen years before the trial; the extraordinary number of exhibits, numbering hundreds, out of which the merits of the case had to be developed; a trial lasting some seventeen days, most of the sittings continuing during both morning and afternoon. The certificate of the referee is presented herewith, and deponent unites with him in representing to this court that an allowance of the full statutory amount should be made. [Jurat.] FORM No. 1685. Order for extra allowance (in addition to costs).94 [Title (court order) and recitals; see Form 820, p. 1174.] [Reciting: and it appearing that the case was difficult and extraordinary;95] 94 A separate formal order is not necessary, when the allowance is made as a part of the proceedings at the trial, or by a direction contained in the decision. See Gurney v. Union Transfer, etc., Co., 8 N. Y. Supp. 549, 57 N. Y. Super. Ct. 444; aff'd, 130 N. Y. 660; Harris v. Balt. Machine, etc., Co., 112 App. Div. 389, 98 N. Y. Supp. 440. In the absence of an objection to an allowance, and an exception, when granted on the trial, the Appellate Division will not interfere. Schiff v. Tamor, 104 App. Div. 42, 93 N. Y. Supp. 853; Sheridan v. Inter. R. T. Co., 101 App. Div. 534, 91 N. Y. Supp. 1052. 95 As to when a case is or is not difficult and extraordinary within the rule, see Standard Trust Co. v. N. Y. Central, etc., R. R. Co., 178 N. Y. 407 (negligence); Frey r. N. Y. Central, etc., R. Co., 115 App. Div. 623 (common carrier); Walker v. Newton Falls Paper Co., 111 App. Div. 19, 97 N. Y. Supp. 521 (negligence). Difficult questions of fact may render a case "difficult and extraordinary " within the statute. Am. Fruit Product Co. v. Ward, 113 App. Div. 319. The question whether the court has jurisdiction to make an allowance is appealable to the Court of Appeals. Kitching v. Brown, 180 N. Y. 425. The following cases consider the subject matter involved, as affecting the right to or the basis of computa tion of an allowance: Slater v. Slater, 99 App. Div. 460, 91 N. Y. Supp. 269 (partnership accounting); Kitching v. Brown, 180 N. Y. 425 (to enjoin breach of covenant); Brown v. Retsof Mining Co., 109 App. Div. 150, 95 N. Y. Supp. 815 (commissions); Wright . Fulling, 104 App. Div. 49, 93 N. Y. Supp. 228 (id.); Beebe t. Mead, 101 App. Div. 500, 92 N. Y. Supp. 51 (interpleader); Dunlap r. Young, 68 App. Div. 137, 74 N. Y. Supp. 184 (enjoining use of trademark); Van Vleck v. Van Vleck, 21 App. Div. 272, 47 N. Y. Supp. 470 (separation); Wright v. Reusens, 15 N. Y. Supp. 504, 39 St. Rep. 802 (mechanic's lien); People v. Fitchburg R. R. Co., 133 N. Y. 239 (submission of controversy); Hert r. Cruger, 14 Misc. 508, 35 N. Y. Supp. 1063 (reformation of instrument); Johnson v. Shelter Isl. Grove Assoc., 122 N. Y. 330 (easement); Godley . Kerr Salt Co., 3 App. Div. 17, 37 N. Y. Supp. 988 (injunction); Hudson Riv. Tel. Co. v. Watervliet Turnp. Co., 135 N. Y. 393 (corporate franchise); Sentenis v. Ladew, 140 N. Y. 463 (trespass). Where defendant prevailed on the counterclaim, on which the only issue was rested, held that an allowance to the plaintiff is unauthorized. Huber v. Clark, 105 App. Div. 127, 93 N. Y. Supp. 1090. May be granted upon discontinuance after issue joined. Stallman v. Kimberly, 11 N. Y. Supp. 518, 33 St. Rep. 813. ORDERED, that an extra allowance of dollars,96 in addition to costs, be, and the same hereby is granted to the Enter: [signature of judge by initials of name and title.] FORM No. 1686. Order allowing costs in judgment against executor or administrator to be paid out of the estate,98 [As in next Form, omitting the clause in the recitals between the* and the t, and at the end substituting for the words between the and the 8, "out of the property of the decedent."] FORM No. 1687. Order allowing costs, against executor, administrator, trustee of express trust, or statutory plaintiff, etc., to be charged upon him personally.90 [Title of action.] * At a Trial Term [etc., as in day of The issues herein having been duly tried before Mr. Justice J. K. and a jury on the 19 9 and a verdict having been duly rendered for the plaintiff, and a motion having been made by the plaintiff at the close of the trial for costs to the plaintiff, and for a further sum as an additional allowance, to be awarded against the defendant Y. Z., to be collected out of his individual property for having [unreasonably resisted the payment of said claims]; † and on reading the pleadings, and on reading and filing the affidavit of A. T., verified the day of 19 and after hearing A. T., for the plaintiffs in support of the motion, and on reading and filing the affidavit of T. Z., verified the in opposition thereto, and hearing T. Z. for the defendant in opposition thereto, and considering the proceedings appearing on the trial, and it appearing to the court that [the said claims were duly presented to the defendant as executor of the last will and testament of M. N., deceased, pursuant to the statute, and the consent was not filed as provided in section 1836 of the Code of Civil Procedure or, and that the payment thereof was by said defendant unreasonably resisted] ; Now, on motion of A. T., attorney for the plaintiff: 96 Code Civ. Pro., § 3253. * 97 The judgment should contain a recital of the allowance. See Form day of 19 98 N. Y. Code Civ. Pro., §§ 1835, 1836. 99 See notes to Form 1679. 1716. |