Overheiser agt. Morehouse. (Potter's Dwarris on Statutes, 156, 157; Wallace agt. Bennett, 41 Barb., 92, 95, 96, and cases there cited; Matter of Curser, 89 N. Y., 401). Part two of the present Code passed the legislature May 6, 1880. Four days afterwards (May 10, 1880) chapter 245 of the Laws of 1880 was passed. By its first section (subd. 4, page 369), the old Code was repealed. If that act had contained nothing more, very clearly the whole of the old section 317 would have been swept away. It did not, however, stop with a simple repeal, but it further provided (pages 374, 375): "Sec. 3. The repeal effected by the first section of this act is subject to the following qualifications: * 8. It does not affect the right of a prevailing party to recover the fees of referees and witnesses and his other necessary disbursements upon the reference of a claim against a decedent, as provided in those portions of the Revised Statutes left unrepealed after this act takes effect." * * The point now distinctly presented is, do the words, "as provided in those portions of the Revised Statutes left unrepealed after this act takes effect," refer to "the fees of referees and witnesses and his other necessary disbursements," or do they refer to "the reference," of which the reservation also speaks? In other words, was it the intention of the clause to retain the provision in old section 317, giving referees' fees and other disbursements in a reference, which had taken place according to and under the provisions of the Revised Statutes; or did it intend to give or retain referees' fees only in those cases in which the Revised Statutes gave them? Miller agt. Miller (32 Hun, 481) and Daggett agt. Mead (11 Abb. N. C., 116) hold to the latter view. Sutton agt. Newton (2 How. [N. S.], 56) and Hall agt. Edmunds (67 How., 202) to the former. Which of these two views is correct? Certainly, as Miller agt. Miller is a decision of the general term of this department, it should be followed unless it is clearly erroneous. The Cole, however, has been so often changed, and those changes are so often hidden in the maze Overheiser agt. Morehouse. of conflicting statutes, that hardly the same force can be attached to a decision as to its precise condition upon a single point, as there must be to one enunciating a legal principle. Where the special term differs in the former case, and such difference amounts to a conviction, it cannot be disrespectful to submit to the appellate tribunal the reasons of a dissent, to the end that the questions in dispute may be thoroughly discussed and more deliberately considered. When the case of Sutton agt. Newton was decided, the attention of the judge writing this opinion was directed by eminent counsel, not interested in that case and occupying a judicial position, to Hall agt. Edmunds and the various statutes therein referred to, as being a better exposition of those statutes than Miller agt. Miller. A careful examination of the question then made induced the decision in Sutton agt. Newton, with the conviction that the view expressed in the opinion was so clear that the question should be again presented to the appellate tribunal. The disbursements, which that opinion holds the prevailing party in that case was entitled to as matter of right, were also properly allowable with the costs generally, upon the ground that the claim had been unreasonably resisted, and therefore no possible injustice could be done by giving the writer's views upon the question now under consideration. The point now, however, is presented somewhat differently. The conclusion has been reached in this case that the claim of the plaintiff was not unreasonably resisted, and therefore the propriety of following Miller agt. Miller is more forcibly presented than it was in Sutton agt. Newton. A careful study, however, has so thoroughly convinced the judge, to whom the present case has been submitted, that the decision referred to cannot be upheld, that he has been constrained to follow his own convictions, giving his reasons therefor, thus submitting the problem to the appellate tribunal, whether or not Miller agt. Miller shall be adhered to. The question is certainly approached with feelings of the highest respect for the mem Overheiser agt. Morehouse. bers of the general term, and with the conviction that they, in common with the writer, have no other desire than the attainment of right. 66 Prior to an analysis of the saving clause in the repealing act of 1880, which will be presently attempted, it is well to bear in mind what has been established in the preceding part of this opinion, to wit: 1st. By the old Code (§ 317), in references of the character of the present, "the prevailing party" was entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law." 2d. When the first thirteen chapters of our present Code took effect, by the repealing act of 1877 (chap. 417, Laws 1877), section 317 was continued in force. 3d. When the law was passed (May 6, 1880) adopting the remaining nine chapters of the present Code, said section 317 was still in force. It also remained in force after their adoption, because the readoption and the re-enactment of old statutes do not, in the absence of a clause repealing the old, or of an express declaration that the new is a substitute for the old, abrogate them, for there is no inconsistency; and the omission to re-enact a part has only the effect to allow such omitted part to stand upon its original enactment. This consequence, and this only, followed from the adoption of part two of the present Code. Sections 1835, 1836 and 3246, were simply redeclarations that all the provisions of said section 317, except the clause providing for the recovery of the disbursements aforesaid, should be in force, but the silence of our law-makers in the chapters referred to did not repeal a clear and positive provision in the old statute upon a subject which the new legislation did not profess to touch. In other words, part two of the Code provided for the recovery of costs "in an action" against an administrator or executor, but it said nothing about the old section 317, nor about "the fees of referees and witnesses and other necessary disbursements" which such section gave as matter of "right" to "the prevailing party," when "any claim against a deceased person" had VOL. II 34 Overheiser agt. Morehouse. been "referred pursuant to the provisions of the Revised Statutes." Unless there was an intention to repeal, there was no occasion to speak silence was the continuation of the old law (Potter's Dwarris on Statutes, 156, 157; Wallace agt. Bennett, 41 Barb., 92, 95, 96, and cases there cited; Matter of Curser, 89 N. Y. 401). We now understand the situation of the question under discussion, when four days after the adoption by the legislature of part two of the present Code, that body passed the repealing act of 1880. The effect produced by the adoption of the nine concluding chapters of the present Code was the preservation of the old rule in regard to costs "in an action" against an administrator or executor. For the purpose of maintaining such old rule the existence of the old section 317 was no longer necessary-sections 1835, 1836 and 3246 were full and ample to effect that object. The old section was therefore repealed, but when that was done it became necessary, unless its total repeal was intended, to declare the fate of the remaining portion of such section, in regard to which absolute silence had up to that time been maintained. It was therefore expressly further said that such repeal did "not affect the right of a prevailing party to recover the fees of referees and witnesses and his other necessary disbursements upon the reference of a claim against a decedent, as provided in those portions of the Revised Statutes left unrepealed after this act takes effect." Can anything be plainer? It was not the power to award "costs" in certain cases upon the establishment of sundry other facts, which was to remain unaffected, but the right" (i. e., the award thereof as a consequence of the recovery), to "the fees of referees and witnesses and his other necessary disbursements" by the prevailing party. The exact similiarity of the language of the saving clause of the repealing act just quoted with that of section 317 aforesaid proves that the framer of such saving clause penned it with his eye upon the provision of the section we are discussing. The identity of the language used by both can be accounted for upon no Overheiser agt. Morehouse. * * other hypothesis. When, therefore, in order to specify in what cases the "right" to such disbursements was given, there were added to those giving them, these further and additional words, to wit, "upon the reference of a claim against a decedent, as provided in those parts of the Revised Statutes left unrepealed after this act takes effect," the meaning was unmistakable. It was not the right to sundry disbursements, given by the Revised Statutes, which was preserved, but the "right of a prevailing party * upon the reference of a claim against a decedent, as provided in those portions of the Revised Statutes left unrepealed," to the particular disbursements specified in the repealing act, was retained. If there was nothing to guide us but the words and structure of the sentence the meaning would be unmistakable. When, however, we add to the language used the further arguments that the Revised Statutes never, on such a reference, gave either costs or disbursements to the prevailing party as a "right," but only empowered the court in its discretion, upon certain facts being proved, to give "costs" generally, and that the section of the Revised Statutes (2 Edm. ed., 91, sec. 37) which gave to courts in references of this character the "power to adjudge costs, as in actions against executors" was, with the entire section which contained it, expressly retained and preserved by the same repealing act (chap. 245, Laws of 1880, sub. 3 of sec. 1, p. 368), the meaning becomes too clear for discussion. Under such circumstances to say, as was hastily said in Miller agt. Miller (32 Hun, 481), that the sentence in the repealing act "has reference simply to provisions of the Revised Statutes," is to declare that such sentence has no meaning whatever. An exception is only necessary when without it the thing excepted would be affected. If any part of the Revised Statutes, left unrepealed by the repealing act, gave the disbursements saved by such act, it was unnecessary to declare that such part of the Revised Statutes was unaffected by the repeal. To make that declaration is equivalent to an |