Fulmer v. Ashton 17 A.D.2d 650

In an action for a declaratory judgment wherein the Official Referee who tried the ease died after rendition of his decision but before entry of a judgment thereon, the plaintiff appeals: (a) from an order of the Supreme Court, Queens County, dated March 8, 1961, which directed the entry of judgment and denied plaintiff’s cross motion for a rereferral of certain issues; and (b) from - the judgment of said court entered March 8, 1961 on the decision of the Referee. Order affirmed, without costs. Judgment modified by deleting the words “ together with the costs and disbursements of this action as taxed in the sum of $177.85 and that the defendants have execution therefor ”, As so modified, the judgment is affirmed, without costs. The deceased Official Referee made no finding concerning plaintiff’s claim for a larger share of the 1955 income. In our opinion, plaintiff failed to establish that he was entitled to more than he received for that year, and we accordingly now make such a finding in support of the judgment. It was improper to include an award of costs in the judgment, since the decision of the deceased Referee contained no provision for costs (Civ. Prac. Act, § 79-a; Rules Civ. Prac., rules 198, 214; Metropolitan Life Ins. Co. v. Union Trust Co., 294 N. Y. 254, 259; Loeschigk v. Addison, 3 Robt. 331). Beldock, P. J., Ughetta, Kleinfeld, Christ and Rabin, JJ., concur.