Majority
p. 383EHRENREICH et al. v LICHTENBERG et al. (City Court of New York, General Term. July 3, 1899.) Argued before SCHUCHMAJST and HASCALL, JJ.
Headnote
Executors and Administrators—Costs.That a verdict was rendered on a claim against an estate does not necessarily import that claimants were unreasonably opposed, within Code Civ. Proe. § 1822, allowing costs against executor or estate, where payment of claims is unreasonably opposed.
Appeal from special term.
Action by Moses Ehrenreich and others against Benjamin G. W. Lichtenberg and others. From an order of the special term award-
ing to the plaintiffs costs against executors, they appeal.
Beversed.
Otto Horwitz, for appellants.
Jacob Fromme, for respondents.
Appeal is taken from an order of the special term awarding to the plaintiffs costs against executors. We think that, without positive charge in the moving papers that the executors unreasonably neglected or resisted the claim, no costs should follow,for it does not necessarily result that, because a verdict was had by the plaintiffs, defendants unreasonably opposed their action. Moreover, it does not affirmatively appear from the moving papers that the defendants did not file the consent provided for by section 1822 of the Code. To obtain the exemption provided by statute, the hearing and determination of the claim is upon settlement of the
p. 384
executor’s account, not to refer the controversy, and there is yet time for the appellants to avail themselves of the statutory permission. Sections 1836, 1822, 2743, Code.
Order appealed from reversed, with costs.
SCHUCHMAN, J., concurs.