German-American Provision Co. v. Garrone

of $108.65, besides the costs and disbursements of this action.” The defendant answered and the plaintiff noticed the case for trial before the Trial Term of the court, and upon such notice the action was brought on for trial at the Trial Term and was there tried without a jury, which trial resulted in a judgment in favor of the plaintiff and against the defendant for $6.42. No costs were granted to either party by the court. Subsequently the defendant presented to the clerk a bill of costs which was adjusted at $101.54, and judgment was thereupon entered awarding to the plaintiff the sum of $6.42 and to the defendant her costs as adjusted, giving to the defendant a judgment against the plaintiff for the difference. It is alleged in an affidavit submitted on behalf of the plaintiff that upon the trial the court decided that the action was in equity, but as it contained the proper allegations essential to an equitable action, the motion to dismiss the complaint was denied, but this was contradicted by counsel for the defendant, he alleging that the court ruled that the action was one at law. The action having been brought to recover a sum of money only and brought on for trial and tried at a Trial Term of the court where actions at law are tried, we must assume that the action was an action at law, was tried as such and resulted in a judgment for the plaintiff for $6.42. The right of the parties in such an action to costs depends upon sections 3S328 and 3229 of the Code of Civil Procedure. By section 3228 it is provided that the plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favor in actions specified in subdivisions 1, 4 and 5 of section 2863 of the Code. Subdivision 5 of section 2863 specifies an action brought against an executor or administrator as such, except where the amount of the claim is less than $50, and the claim has been duly presented to the executor or administrator and rejected by him. By this section it would appear that the plaintiff was entitled to costs upon the rendering of a final judgment in his favor in an action brought against an executor or administrator as such, where the amount of the claim is $50, and where the claim has been duly presented to the executor or administrator and rejected by him. The amount of this claim was more than $50, and although the recovery was less, the section seems to speak of the amount of the claim and not of the recovery ; but it does not appear that this claim had ever been presented to the

administratrix and rejected by her. Section 3229 only applies to a case where the plaintiff is not awarded costs by section 3228. If, therefore, the right to costs depended upon the provisions of these sections of the Code, it would appear that the plaintiff and not the defendant was entitled to costs. By section 1835 of the Code of Civil Procedure, however, it is provided that where a judgment for a sum of money only is rendered against an executor or administrator, in an action brought against him in his representative capacity, costs shall not be awarded against him, except as prescribed in the next section. The next section (1836) provides that “ Where it appears, in a case specified in the last section, that the plaintiff’s demand was presented within the time limited by a notice published as prescribed by law, requiring creditors to present their claims, and that the payment thereof was unreasonably resisted or neglected, or that the defendant did not file the consent provided in section eighteen hundred and twenty-two at least ten days before the expiration of six months from the rejection thereof, the court may award costs against the executor or ádministrator, to be collected, either out of his individual property, or out of the property of the decedent, as the court directs, having reference to the facts which appear upon the trial. Where the action is brought in the Supreme Court, the facts must be certified by the judge or referee before whom the trial took place.” As none of the facts specified in section 1836 appear in this record and as there was no award of costs against the defendant by the justice who tried the case, it would seem to follow from this provision of the Code that the plaintiff was not entitled to costs against the defendant and neither party was entitled to costs. As the order appealed from vacates the taxation and the judgment awarding the defendant the costs as taxed, and as no award of costs was made to the plaintiff, the order appealed from was right, and should, therefore, be affirmed, with ten dollars costs and disbursements.

McLaughlin, Hatch and Laughlin, JJ., concurred; Patterson, J., in result.

Order affirmed, with ten dollars costs and disbursements.