11 Abb. Pr. 258 | N.Y. Sup. Ct. | 1860
There have been various and contradictory decisions upon the question presented by this appeal. In McCann a. Bradley (15 How. Pr., 79), the general
The provisions of the Revised Statutes form a system which is complete in itself in regard to the settlement of estates, and the collection of demands against them. The section in question is part of that system, and is intended to give to executors and administrators notice of a demand made upon them, and an opportunity to admit it and agree to its payment in the
Nor is it necessary to make an application to the court for leave to enter a judgment for the costs in such a case. Such an application is only necessary when the award or refusal of costs rests in the power or discretion of the court, or at least depends upon something else than a positive direction of statute. In cases where the action is brought against executors or administrators, no costs are recoverable unless the plaintiff has, before bringing the action, complied with the conditions of the statute, and this must be shown to the court outside the record; but when the administrator is substituted for the deceased in a pending, action, as in this case, the court would have had no more to pass upon in such an application than if a similar application were made in the case of a living defendant.
The plaintiff’s judgment was regular, and the order refusing to set it aside must be affirmed, but considering the conflicting character of the decisions, without costs.
Brown, J.—Dissented.
Present, Emott, Lott, and Brown, JJ.
As to this view of an appeal, consult Enos a. Thomas (5 How. Pr., 359); Johnson a. Yeomans (8 Ib., 140); Seely a. Pritchard (12 N. Y. Leg. Obs., 245); Gormly a. McIntosh (22 Barb., 271); Harriott a. New Jersey Railroad Co. (8 Abbotts’ Pr., 284) ; D’Ivernois a. Leavitt (Ib., 59); and see People a. Judges of Suffolk (24 Wend., 249).