(concurring.) The payment of plaintiff’s claim was not unreasonably resisted, and therefore plaintiff should only recover his disbursements. The same rule should govern the granting of costs on reference under the statute as in an action against executors and administrators. Code Civil Proc. §§ 1835,1836.1 Had it appeared, however, that the payment of the claim in suit was unreasonably resisted and neglected, I am not prepared to say that costs could not have been properly allowed under section 3240, Code Civil Proc.2 It has been suggested that, although a reference under the statute is a special proceeding, section 3240, supra, does not apply, because, as.held in Larkins v. Maxon, 103 N. Y. 680, 9 N. E. Rep. 56, (3 Birdseye, St. 2614, 2615,) section 317 of the Code of Procedure is yet in force, and that section regulates the award of costs on such a reference. By section 3250, Code Civil Proc., it is provided that the title therein as to costs (including section 3240, supra) shall not affect any provision of any other unrepealed statute regulating the costs in any particular case. But in fact section 317, supra, does not regulate the award of costs in such a case. It is silent upon that subject. It merely provides that the prevailing party may recover his referee’s fees and disbursements. It strikes me, therefore, that section 3240, .supra, may apply to such a reference, and that, when the payment of a claim against a deceased party is unreasonably contested, the court may award costs in addition to the disbursements which the prevailing party is entitled to, under the provisions of section 317 of the Code of Procedure.
HERRICK, J., concurs.
Section 1836 provides that where it appears, in an action brought against an administrator in his representative capacity for money only, that payment of the plaintiffs demand was unreasonably resisted or neglected, the court may award costs against the administrator, to be collected either out of his individual property, or out of the property of the decedent, having reference to the facts which appeared on the trial.
Section 3240 provides that “costs in a special proceeding, instituted in a court of record, or upon an appeal in a special proceeding taken to a court of record, where the costs thereof are not specially regulated in this act, may be awarded to any party, in the discretion of the court, at the rates allowed for similar services in an action brought in the same court, or an appeal from a judgment taken to the same court, and in like manner. ”