Mulheran's Executors vs. Gillespie, 12 Wend. 349

By the Court, Sutherland, J. 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 estate; and, if that should prove deficient, against the executors personally ; and unless the facts and circumstances which are necessary in order to entitle the plaintiff to such a judgment must appear on the face of the record, such judgment is not erroneous. I know no way in which they can regularly be put upon the record, without the special order of the court.

They might in that way perhaps be entered by way of suggestion after the requisite evidence had been produced to the court to justify such an order; but they constitute no part of the issue between the parties. They are not set forth in the declaration, and of course are not traversed by the plea, or found by the jury : and the evidence at the trial, whatever it may be, does not appear on the record. 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.