12 Wend. 349 | N.Y. Sup. Ct. | 1834
By the Court,
The award of costs against the defendants de bonis testatoris, et si non, de bonis propriis is not error. The statute 2 R. S. 90, § 41, provides that costs shall not be recovered against executors or administrators in any suit at law, to be levied of their property or of the property of the deceased, unless it appear that the demand on which'the action was founded was presented within six months after notice by the executor or administrator, requiring all persons having claims against the deceased to exhibit the same; that its payment was unreasonably resisted or neglected, or that the defendant refused to refer the same, pursuant to the provisions of the statute; in which cases the court may direct such costs to be levied of the property of the defendants, or of the deceased, as shall be just, having reference to the facts that appeared on the trial. If the action be brought in the supreme court, such facts shall be certified by the judge before whom the trial shall have been had. There are certain cases, therefore, in which costs may be awarded against the es
Costs in these cases are always ordered upon a special application to the court by way of motion. Where the action is brought in this court, and there has been a trial, the circuit judge is to certify as to the facts appearing upon the trial, in relation to the question of costs. In cases of cognovit and default, they must be shown by affidavit. This was the practice established by the court in Potter v. Ely, 5 Wendell, 74, Palmer v. Palmer, id, 91, and Nicholson v. Showerman, 6 id. 554, and which has been applied in many cases not reported.
If judgment for costs is entered up against executors without the order of the court, it is irregular, and, upon proper application will be set aside ; but it is not error.
All the other points presented by the bill of exceptions are considered by J udge Irving, in the opinion pronounced by him upon, an application for a new trial. A copy of the opinión is attached to the case, and I entirely concur in the conclusion at which Judge Irving arrived.
Judgment affirmed.