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Judah v. Stagg's Executors

22 Wend. 641 Court N.Y. Sup. Ct. English

Delivered by Bbonsoh, J.

Contents

Majority

p. 641
Judah vs. Stagg’s Executors.

Headnote

Where a judgment obtained by executors is reversed on error brought, the plaintiff is entitled to costs, but the judgment for costs must be de bonis ¿estator is.
It seems the executors would be thus liable for the costs in error, although they would not be subject to costs in the court below.
Costs against executors in error. The executors sued Judah in the marine court of the city of New-York, where they were non-suited. On certiorari, the superior court of the city of New-York reversed the judgment. Judah then brought error to this court, where the judgment of the superior court was reversed, and that of the marine court affirmed. The plaintiff in error perfected the judgment of reversal with costs against the defendants in error, which they now move to set aside, on the ground that executors are not liable for costs.
p. 642
C. Stevens, for the executors,
D. Burwell, contra.

By the Court,

The statute exempting ex? ecutors from costs in suits brought against them, does not extend to proceedings in error. 2 R. S. 90, § 41. The whole judgment was reversed, and a new trial was not ordered. In such cases, the statute is general, that the plain? tiff in .erro.r shall recover costs, without any exception in fa? vor of executors. 2 R. S. 618. § 31. We are not authorized to make an exception which the legislature has not thought proper to make. Administrators of Kellogg v. Wilcocks, 2 John. 377 . Hogeboom v. Clark, 17 John. 268 . It seems, however, that the costs can only be levied de bonis testatoris. Gleason v. Clark, 1 Wendell, 303. The re? mark in that case, that an executor is only liable for costs in error in cases where he would be subject to costs in the court below, though such is the rule in England, is not in accordance with the prior decisions of this court. The plaintiff in error was entitled to costs, and for aught that appears the judgment has been entered that they be levied of* the goods of the testator.

Motion denied.