22 Wend. 641 | N.Y. Sup. Ct. | 1840
By the Court,
The statute exempting ex? ecutors from costs in suits brought against them, does not extend to proceedings in error. 2 R. S. 90, § 41. The whole judgment was reversed, and a new trial was not ordered. In such cases, the statute is general, that the plain? tiff in .erro.r shall recover costs, without any exception in fa? vor of executors. 2 R. S. 618. § 31. We are not authorized to make an exception which the legislature has not thought proper to make. Administrators of Kellogg v. Wilcocks, 2 John. 377. Hogeboom v. Clark, 17 John. 268. It seems, however, that the costs can only be levied de bonis testatoris. Gleason v. Clark, 1 Wendell, 303. The re? mark in that case, that an executor is only liable for costs in error in cases where he would be subject to costs in the court below, though such is the rule in England, is not in accordance with the prior decisions of this court. The plaintiff in error was entitled to costs, and for aught that appears the judgment has been entered that they be levied of* the goods of the testator.
Motion denied.
