Lakin v. Sutton

116 N.Y.S. 820 | N.Y. App. Div. | 1909

Chester, J.

The plaintiff in an action brought by her as administratrix of the estate of her mother, recovered a judgment against the defendant, her stepmother, on a trial in the Justice’s Court. On the appeal from that judgment to the County Court the judgment was reversed, with costs to the defendant. The plaintiff thereupon appealed to this court where the judgment of the County Court was affirmed, with costs. (127 App. Div. 933.) A motion was then made by the defendant in the County Court for leave, to tax her costs in the action against the plaintiff individually, and from the order granting that motion the plaintiff has taken this appeal.

The cause of action sued upon was one accruing after the death of the plaintiff’s intestate, and was. one- which might have been brought in her individual name and need not have been prosecuted by her in her representative capacity. She having been defeated in the action was, under the authorities, individually liable for the costs, notwithstanding she sued in a representative capacity. (Buckland v. Gallup, 105 N. Y. 453.) Indeed in such a case it was not necessary, although it was proper, to procure an order declaring her' liability. (Mullen v. Guinn, 88 Hun, 128.) The order which, was made was simply declaratory of the law as it was well settled and existed upon the subject, and even though the order was unnecessary it does not render the plaintiff a party aggrieved, for she was clearly liable for the costs in the absence of the order. For this reason her appeal should be dismissed, with ten dollars costs and disbursements.

All concurred; Sewell, J., not sitting.

Appeal dismissed, with ten dollars costs and disbursements;