It would be a matter of course to allow a per centage in this case, if I was satisfied that the administrators are entitled to costs under the Code; for, by the rules adopted in this district at the general term in January last, it is provided, that “ such allowances will he made whenever there has been a trial, and the parties have appeared and litigated the question in controversy.”
But I am unable to discover any thing in the Code which gives the administrators any costs at all beyond disbursements. It is quite clear that, under the Revised Statutes, costs could be adjudged by the court (2 R. S. 89, § 37). But it is equally clear that this reference is not an action, within the definition of the Code; for it is not “ an ordinary proceeding in a court of justice, by which a party prosecutes another party,” &c.; nor is it commenced “ by the service of a summons,” as that act requires all civil actions to be commenced in a court of record ( § 127).
Again; the general provisions of the Code, contained in title ten of the second part, regulate costs only in actions, and do not refer to or alter costs in special proceedings pending in the Supreme Court. The defendants are not, therefore, entitled to the costs given by the Code, and, of course, can not claim the per centage, which maybe allowed only in addition to the costs given by the Code.
Whether, in a case of this kind, costs can be allowed according to the old fee bill, is a question which I am not now called on to decide. The authors of the Code of 1851, seemed to suppose that costs could not be allowed at all, if we may draw an inference from an interpolation in § 317, which provides that whenever any claims against a deceased person shall be refer*210red pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of reference and witnesses, and other necessary disbursements to be taxed, according to law.” This act, at any rate, secures to the defendants their disbursements, but they are not entitled to a per cent-age. Motion denied without costs.