The plaintiff had no right to include costs in the judgment, unless this is an ordinary action or a reference under the statute authorizing references of claims against the estates of deceased persons. (2 R. S. 88, 89.) In some cases it is true, costs follow the decisions of arbitrators, but that is only where the imposition of costs is expressly authorized by the agreement to submit to arbitration, or where the arbitrators under an authority impliedly conferred upon them by the terms of the submission, expressly award such costs. (See Nichols agt. Rens. Co. Ins.Co'y., 22 Wend. 125; Matter of Vanderveer, 4 Den. 249.)
In this case no such thing has occurred. The referees or arbitrators (by whichever name they should properly be designated) have not awarded the costs or expenses of the arbitration in favor of or against either party. Nor does the agree*25ment to submit, provide for an award of costs against either party. It provides for an award “ pursuant to law,” and for “ judgment to be entered upon said award and determination, pursuant to law, in the supreme court.” This does not necessarily imply an authority to award costs as a consequence of their determination of the subject matter of the controversy, in favor of either party. We are necessarily, therefore, driven to the inquiry, whether this is either a common law or a statutory action ? I think it is neither. It is not an ordinary action, for there is neither the ordinary process nor the ordinary pleadings, by which a suit is commenced or carried on. The first step in the proceedings is an agreement to submit or refer. We must, therefore, turn our attention to the point whether it is substantially the statutory reference and action authorized by the statute before referred to. If it be so, then the prevailing party is entitled to tax as costs in the action, the fees of referees and witnesses, and the necessary disbursements. (Code, § 317.) And these are all which he has included in the judgment. If it be not so, then the costs have no proper place in the judgment roll, and should be expelled therefrom. The statute in question, authorizes a new and peculiar procedure, confers some special rights and privileges upon both parties, and in order to entitle the parties to those benefits and privileges, should be substantially complied with in all material particulars. It contemplates in the first place, a presentation of the claim and a doubt by the administrator of the justice thereof. This was done. I see nothing in the nature of the claims presented by James Akely to the administrator, as detailed in the agreement, which should forbid their reference under this statute.. But the administrator also presented claims against James Akely. Assuming for the present that they were of a nature to be the subject of reference, I see nothing in the statute which forbids their being included in the reference. Upon the presentation of a claim to an administrator, (or executor,) he is authorized to require satisfactory vouchers in support thereof; he is also authorized to require the affidavit of the claimant that there are no payments or off*26sets against the same. If he still doubt the justice of the claim, then he may refer. Refer what ? The matter in controversy. What is the matter in controversy ? I think the point in controversy is, whether the claimant has any just claim against the estate, over and above all payments and offsets. And the matter in controversy is the claim or' claims of the claimant on the one side, and the denial of such claims and the payments and offsets on the other. The statute should be construed liberally to effectuate what was the palpable object of the legislature in enacting it, to wit: to provide a cheap, easy and comprehensive mode of settling claims against the estates of deceased persons. I think, therefore, "that in these proceedings it is allowable not only for the executor to deny the claim or •cause of action, but to show payments thereon or offsets thereto. But some of the claims presented by the administrator and included in the agreement are obviously matters not arising on contract, and are stated in the agreement in a form suitable for a recovery (if an action had been brought thereon) for a wrong or tort, and not in a form adapted to their recovery as in an action ex contractu, waiving the tort. The question arises whether claims of this character are proper subjects of such a statutory reference, and whether if inserted in the agreement to refer, they convert the proceeding into an arbitration ? I am inclined to think they do. Evidently the claimant would not have been compelled to allow any such counter claims' to come in. They are not referable as matters of account, nor are they payments or offsets within the statute above referred to. In an "ordinary action instituted in the usual way, a reference of such claims would convert the proceeding into an arbitration. Judgment might be entered upon it, if provided for by the terms of submission. But that would be the end of it. The court would not entertain a motion to set aside the verdict upon the evidence or upon exceptions to the ruling of the referees. (Silmser agt. Redfield, -19 Wend, 21; - Beardsley agt. Dygert, 8 Den. 380.) They would, however, vacate the judgment if not entered in conformity with the stipulation or agreement to submit. (Dederick agt. Richley, 19 Wend. 108.) I *27doubt whether under the statute in question, any matters are referable, except matters of account or causes of action arising on contract. They must be such as are subject to offset. And mutuality would require that the demands of the administrator should be of a similar or kindred character to those of the claimant. I am aware that the Code (section 270) authorizes a reference of any of the issues in an action. But this is not an action in the ordinary and accepted sense of the term, and as the provision last mentioned is in derogation of the common law rule, it must be strictly construed.
Waiving, however, any absolute decision of this point, there are other aspects of the case which deserve attention. The parties in the agreement have by no means confined themselves to the language of the statute, or to language appropriate to a reference, but have employed terms, both in the agreement and the rule, ordinarily employed in submissions to arbitration, and expressive of an intent to arbitrate. Thus they agree to submit the matters in controversy to certain persons to determine and award upon the same, and judgment is to be entered upon such award and determination. The surrogate approves of the persons selected as proper persons to whom to submit the said claims and demands, and the rule refers the matters in controversy to said persons to hear, determine and award the same. This language is more appropriate to a submission to arbitration than to a reference, and would, I think, be decisive of the intent of the parties, were it not that in other respects as to the form of procedure, (except in a single particular,) they have adopted the machinery appropriate to the statutory reference in question. That exception we will now consider. Throughout these proceedings, the administrator occupies the position of plaintiff. He is not only first mentioned in the agreement as apparently the leading and moving party, but is expressly made plaintiff by the administrator’s attorney in the rule of reference or submission, described as such afterwards in all the subsequent proceedings, including the referees’ report and the final judgment, and recognized as such by the attorneys of both parties. How the statute cer*28tainly never contemplated that this should be done, and it is the first instance that has ever fallen under my observation, where it has been done. The statute (2 R. S. 88, 89, 90) treats the claimant as the actor, speaks of a claim presented against the estate, of the absence of any offsets thereto, authorizes the court to adjudge costs as in actions against executors, requires a suit to be brought for the recovery of the claim, if disputed or rejected and not referred, within six months thereafter, and provides that in such suits no costs shall be recovered against the defendants, nor in other actions at law against executors, except in certain specified cases, nor is the objection one of mere form. It is a question of power, and the prescribed routine must be substantially followed. It is an innovation upon the ordinary practice, and little or nothing should be taken by implication. Had an ordinary action been brought, the plaintiff recovering less than $50, would not have recovered costs, and costs are given in these cases conducted according to the statutory requirements, because the claimant is not authorized to prosecute administrators or executors in a justice’s court.
I am, on the whole, of opinion that whatever may have been the intention of the parties, these proceedings are not in form or in substance a reference under the statute as to claims against deceased persons; that there was no legal authority for including the plaintiff’s costs or disbursements in the judgment entered, and that to that extent the judgment must be set aside with ten dollars costs.