Overheiser agt. Morehouse. given to a decision of the general term as there would be to one involv ing a pure legal principle. In such a case, it is the duty of the special term when it sees plainly that statutory provisions have been overlooked to follow its own clear convictions, stating its reasons therefor respectfully, thus leaving to the general term a review of the subject. Ulster Special Term, August, 1885. MOTION for costs upon a reference of a claim against the estate of a deceased person under the Revised Statutes. A. F. B. Chace, for plaintiff and motion. R. E. Andrews, for defendant and opposed. WESTBROOK, J.-The plaintiff, who has obtained the report of a referee in his favor for the sum of $4,468.62, moves for the confirmation of the report and for costs. To the former, as there has been no case with exceptions presented, nor any cause shown why the plaintiff should not have a confirmation of the report, he is entitled, but to the latter there are serious objections to be considered. It was a reference under part 2, chapter 6, title 3, article 2 and section 36 of the Revised Statutes (2 Edm. ed., 91). The claim as presented was for $9,013.08, upon which there was a credit given for $1,800, making the balance claimed by the bill as originally presented $7,213.08. Subsequently, however, an amended bill was presented by which the balance claimed was $9,462.68. The report of the referee found the indebtedness of the deceased to the plaintiff to be $7,829.99, and that of the plaintiff to the deceased $4,072.73, leaving due from the latter, at the time of death, to the former, $3,757.26. The referee allowed interest on the balance found due to the plaintiff from the day of the commencement of this proceeding (May 3, 1882), which was $711.36, making the total sum found due at the date of the report (June 26, 1885) $4,468.62. It was conceded upon the argument, and so the law is, that Overheiser agt. Morehouse. to justify the recovery of costs as in an action in which costs are given, the claim of the plaintiff must have been unreasonably resisted. Whether or not the plaintiff is entitled to referee's fees and disbursements will be hereinafter considered, but the question first to be discussed is, was the payment of the claim of the plaintiff unreasonably resisted or neglected. The reduction of such claim from $7,213.08, as originally presented, to $4,468.62, and the establishment of a set-off of $4,072.73 instead of $1,800, as allowed upon the bill as presented, are facts which conclusively demonstrate that the resistance to the demand of the plaintiff was not only not unreasonable, but, on the contrary, reasonable and necessary. It was strenuously, however, urged by the counsel of the plaintiff that as he had proved his claim by the defendant, she had full knowledge of its justice, and therefore it should have been paid without a reference. To this argument there are two answers: 1st. The justice of the cause of action of the plaintiff alone, unless the bill as presented gave a proper credit, would not make resistance to the payment of the balance demanded unreasonable. The defendant may have proven the integrity and propriety of the plaintiff's charges, but either her evidence or some other testimony submitted to the referee satisfied him that the credits or set-off upon or to the bill as presented were over $2,000 greater than the plaintiff's affidavit attached thereto admitted. The resistance was to the payment of the balance demanded, and its large reduction is the justification of the defense made. 2d. The defendant (the executrix) is the sister of the plaintiff. The claim of the plaintiff was for board of the deceased and his wife (the defendant), and horse keeping during a period of six years (from February 2, 1875, to February 2, 1881); and as the payment and allowance of such an account, involving among other things questions of value, by a sister in favor of a brother out of the residuary of an estate devised to strangers, was sure to be contested upon an accounting, it was not unreasonable that the defendant should for her own protection insist that Overheiser agt. Morehouse. the amount to be allowed and paid should be fixed and established by a legal proceeding. Neither was it unreasonable for the residuary legatee under the will of the deceased, "The Children's Aid Society of the city of New York," to inquire strictly and sternly into the validity of a claim of the character of that presented by the plaintiff, concerning which it had no knowledge. It was hardly reasonable to suppose that board, lodging, and horse keeping would be furnished by a needy brother-in-law to a relative abundantly able to pay (the circumstances of the parties were conceded upon the motion) for a period of six years, and an indebtedness allowed to accumulate of several thousand dollars. This was scarcely to be expected, and the residuary legatee, itself a trustee charged with a sacred trust in behalf of helpless ones, only did its duty reasonably, in making the defense. For the reasons which have just been given, the motion, so far as it asks for costs generally and for an allowance, must be denied, and with the enunciation of this conclusion we are brought to the second question: Is the plaintiff entitled to referee's fees, witnesses fees and disbursements? It will be conceded that by section 317 of "The Code of Procedure" such fees and disbursements were given. That section provided that when a claim against a deceased person's estate was referred under the provisions of the Revised Statutes, as this one was, that "the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law." It will be further conceded that if this provision is unrepealed, or if it has since been re-enacted, that the plaintiff is by this motion entitled to their allowance. In Sutton agt. Newton (2 How. [N. S.], 56) the judge writing this opinion, after a careful examination of the question, came to the conclusion that the provision quoted was still in force. That conclusion, in the light of Miller agt. Miller (32 Hun, 481) and of an unreported case (Dodd agt. Dodd), to which allusion will be presently made, he is asked to reconsider. The request will Overheiser agt. Morehouse. be cheerfully complied with, and such reconsideration will not be conducted with a view to sustain a previous conclusion, but to reach the exact right of the proposition to be considered. Section 317 of the old Code, "The Code of Procedure," regulated the recovery of costs in an action by or against an executor or administrator, trustee of an express trust, or a person expressly authorized by statute to sue. The same section further declared (a quotation already in part given is repeated to show its connection): "But this section shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom, by section forty-one of title three, chapter six, of the second part of the Revised Statutes; and whenever any claim against a deceased person shall be referred, pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referces and witnesses and other necessary disbursements to be taxed according to law." The first thirteen chapters of our present code, "The Code of Civil Procedure," took effect (chap. 318, Laws of 1877) September 1, 1877. That act (chap. 318, Laws of 1877) was passed May 22, 1877, and it suspended the operation of the present Code, known when first enacted as "The Code of Remedial Justice," from May 1, 1877, the date when it originally took effect, to September 1, 1877, as just stated. The general repealing act of "The Code of Procedure" was passed June 5, 1877, and it declared among other things: "Section 1. The following acts and parts of acts heretofore passed by the legislature of the state are hereby repealed, to wit: * * * 4. All of the Code of Procedure, except the following sections and parts of sections thereof, to wit: * * * Sections three hundred and eleven to three hundred and twenty-two, both inclusive." As then, section 317 of the old Code was expressly retained by the repealing act of 1877, it is clear that, after the first thirteen chapters of our present Code took effect, and until at least the subsequent nine chapters of the present Code, Overheiser agt. Morehouse. known as "Part II of the Code of Civil Procedure," took effect (September 1, 1880), "the prevailing party" in a reference of the character of the present, recovered "the fees of referees and witnesses and other necessary disbursements to be taxed according to law." In an action, however, against executors or administrators, even though a recovery was had, no costs were taxable unless the court so ordered, upon the ground either that the defendant had refused to refer the claim or that he had unreasonably neglected or resisted payment (2 Edm. ed. of R. S., 92, sec. 41). By sections 1835, 1836 and 3246 of such "Part II of the Code of Civil Procedure," the rule for the recovery of costs "in an action," prescribed by section 317 of the old Code, was preserved. The present Code, however, neither in the section referred to nor in any other part, expressly states whether or not the remaining provision of section 317 of the old Code, which provided that in references of the character of the present, the prevailing party should "recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law," is still in force. It is true that section 3246 of the present Code is a substantial re-enactment of section 317 of its predecessor, with the clause of that section providing for disbursements in references of the character of this omitted, but as such omission merely, without a declaration that the new section is a substitute for or a repeal of the old, does not make any inconsistency between the two, it follows that the new section is no repeal by implication of any part of the old. The present section (3246), and those to which it refers (1835, 1836), only give the rule in regard to costs "in an action," and as the proceeding had in this case is not "an action," but is one upon a (to use the exact language of section 317 aforesaid) "claim against a deceased person * * referred pur * suant to the provisions of the Revised Statutes," the two are not in the least inconsistent. The correct view, therefore, is that the adoption of part two of the present Code did not repeal the provision referred to in section 317 of the old |