motions that are litigated, and which require the service and preparation of papers, that are intended to be provided for by this section. In cases where there is no appearance, and where a reference, a judginent, or the confirmation of the report of a sale is asked for, there is no trouble of preparation, and the party making the motion should not have costs. Bowne v. Anthony, 13 How. 301.

1. Two motions, same relief..-When two motions are made by the same party, where he might have obtained the requisite relief by one, held, that he must pay costs of opposing as to one of them. Mitchell v. Westervelt, 6 How. 265. See, also, Hornfager v. Hornfager, id. 13; S. C. 1 Code R. N. S. 181. m. Motion to change the venue.In such a case, where the notice of motion asks for costs, they will be ordered to abide the event. Northrup v. Van Dusen, 3 Code R. 140; S. C. 5 How. 134.

against evidence.- Where a new trial is ordered in such a case, the peculiar circumstances of each case must govern in regard to the costs of the motion. Wentworth v. Candee, 17 How. 405; Smith v. Schanck, 18 Barb. 344; Scranton v. Baxter, 4 Sandf. 5.

o. Irregularities.-All parties who com mit irregularities, will be charged with costs in the discretion of the court. Beach v. Southworth, 6 Barb. 173; S. C. 1 Code R. 99, sub nom. Beech v. Southworth. See, also, Kellog v. Klock, 2 id. 28.

p. Costs in special proceedings.Under § 3 of the Code, no provision is made for costs in such a case; hence only motion costs can be given. Matter of Pierce, 12 How. 532.

q. New trial.—Where a motion is made, the court may, in its discretion, grant the costs of a motion, not to exceed ten dollars. Fellows v. Sheridan, 6 How. 409; Jackett v.

III. IN

a. Construction of the act of 1847, ch. 390.-This act does not apply to those cases of contempt where a party may be fined for any misconduct productive of an actual loss or injury to the other party. Livingston v. Fitzgerald, 2 Barb. 396.

b. No demand necessary before a fi. fa. can issue.- Where the costs of a motion are not paid within twenty days, it is not necessary to make a demand before an

GENERAL.

execution in the nature of a fi. fa can be issued. Mitchell v. Westervelt, 6 How. 265; Aff'd, id. 311 (n.); Weitzel v. Schultz, 3 Abb. 468; S. C. 13 How. 191, sub nom. Wetzel v. Shultz; Buzard v. Gross, 4 How. 23; Eckerson v. Spoor, id. 361; S. C. 3 Code R. 70, are overruled in this particular. This process cannot issue, however, to collect costs allowed by an order made in supplementary proceedings. Hulsaver v. Wiles, 11 How. 446.

a. Guardian of infant plaintiff responsible. The Code, § 316, makes the guardian of an infant plaintiff responsible for costs of the action, when they are adjudged against such infant, and provides that "payment thereof may be enforced by attachment.” This means a process in the nature of a ca. And it is not strictly necessary for the

sa.

defendant to first issue his execution against the infant, in order to fasten the liability upon the guardian and entitle the defendant to his attachment, though this is perhaps the better practice. Nor is it necessary for an order of the court to first bring the guardian into con tempt, before the attachment can issue. Grantman v. Thrall, 31 How. 464.

statute to sue.

a. There must be a positive refusal. In order to charge an estate with costs, on the ground of a refusal to refer a claim, it must appear affirmatively that there was a refusal by the legal representative to refer. Stephenson v. Clark, 12 How. 282. A rejection of the claim is no evidence on the subject of a refusal to submit to a reference. Where either party desires a reference, he should make the offer, none can be inferred. The claimant must manifest his willingness to refer, before the executor or administrator can be said to have refused. Proude v. Whiton, 15 How. 304; S. C. Aff'd, 15 id. 305 (n.); Stephenson v. Clark, 12 id. 282; overruling Fort v. Gooding, 9 Barb. 394; Buckhout v. Hunt, 16 How. 407; Swift v. Blair's Executrix, 12 Wend. 278; Harvey v. Skillman's Executor, 22 id. 571.

b. What will constitute a refusal. Semble, that a neglect or refusal to answer a proposition or offer to refer, might be deemed a refusal. Proude v. Whiton, 15 How. 304, 305 (n.)

c. Advice of counsel.-Resisting under such circumstances is justifiable. Ib.

e. Executor cannot name referees. It is not a sufficient compliance with the statute for the executor to name three referees himself, and then offer to refer the matter to them. If such an offer is rejected, and it is proposed to have the surrogate appoint the referees, the executor must accept such an offer, or costs will be awarded against him. Gorham v. Ripley, 16 How. 313.

f. Parol offer.- An offer to refer an account, presented to administrators or executors, is good if made by parol; it need not be made in writing. Lanning v. Swarts, 9 How. 434.

g. What is not an unreasonable resistance.- Where the claim on the trial has been materially reduced, e. g., from $1,000

to $350, or from $5,000 to $3,000. Cruikshank v. Cruikshank, 9 How. 350; Buckhout v. Hunt, 16 id. 407; Comstock v. Olmstead, 6 id. 77. See, also, Stephenson v. Clark, 12 id. 282.

h. Example of claims executors not bound to refer.- Where an executor dies, having assets in his hands, the surviving executors cannot treat the claim as a debt liquidated and ascertained, although they may have a right to such assets. Such a claim, not being the subject of a common law action, is not one which the legal representatives of the deceased executor are bound to refer under the statute. Sands v. Craft, 18 How. 438; S. C. 10 Abb. 216. The power to refer under the statute covers both legal and equitable claims against a deceased person. White v. Story, 28 How. 173; S. C. 43 Barb. 124; Ackerman v. Ackerman, 14 Abb. 229; overruling S. C. 11 id. 256. A claim of damages for a tort committed by the deceased may properly be referred. Godding v. Porter, 17 Abb. 374.

i. Construction and object of the statute.-A reference of all claims against an estate, whether legal or equitable in their nature, was intended to be covered by the statute; the reason being that trouble and expense of litigation might be saved. Francisco v. Fitch, 25 Barb. 130.

j. Construction of the section (317) must be direction to authorize a personal judgment. In respect to actions brought by executors, etc., this section of the Code supersedes the provisions of the Revised Statutes (2 R. S. 615, § 17). Curtis v. Dutton, 4 Sandf. 719; Fish v. Crane, 9 Abb. N. S. 252. Where the plaintiff,. in his representative capacity, commences an action and fails to recover judgmen the defendant has costs of course, and they are to be collected from the estate which he represents. But in order to authorize a personal judgment for costs in such a case, there must be a direction of the court to that effect. Woodruff v. Cook, 14 How. 481; Cunningham v. M'Gregor, 12 id. 305; S. C. 5 Duer, 648.

k. Six months' rule.-Where there is a claim against the estate of a deceased person, the same having been presented to, and disputed or rejected by, the executor, and which has not been referred, the creditor is not

They should have brought the action in person, the deceased being dead before the promise was given. Lyon v. Marshall, 11 Barb. 241; People ex rel. Bailey v. Judges of Albany Mayor's Court, 9 Wend. 468; Reynolds v. Collin, 3 Hill, 441; Ketchum v. Ketchum, 4 Cow. 87; Goldthwayte v. Petrie, 5 Term R. 234; Administrators of Tilton v. Williams, 11 Johns. 403.

g. Revivor of action.- The plaintiff's testator commenced an action before the Code, in which he had judgment. The action was revived after his death, a new trial was ordered, and the executor was beaten. Held, that in such a case, the executor could not be held personally liable for costs, and that the Revised Statutes did not authorize costs against the estate. Theriot v. Prince, 12 How. 451.

a. Executors, etc. when exempt from costs.-Executors and administrators are not exempt from costs in actions brought by themselves. Section 317 of the Code, and 2 R. S. 90, § 41, only exempt them in cases where they defend. Fox v. Fox, 22 How. 453.

b. What must be established in order to charge an executor defendant with costs.-In order that the plaintiff may do this, he must establish to the satisfaction of the court:

1. That the demand was unreasonably neglected; or,

2. That it was unreasonably resisted; or, 3. That the defendant refused to refer the matter in controversy to three disinterested persons, pursuant to the provisions of 2 R. S. 90, § 41; Buckhout v. Hunt, 16 How. 407. See, also, Bullock v. Bogardus, 1 Denio, 276; Snyder v. Young, 4 How. 217; Russell v. Lane, 1 Barb. 519; Van Vleck v. Burroughs, 6 Barb. 341; Fort v. Gooding, 9 id. 388.

c. Construction of the section · death of testator pendente lite.While an action was pending, the defendant died; the court ordered it to be continued against his personal representatives; the plaintiff had judgment. Held, that if the verdict was one that would have entitled the plaintiff to costs, if the defendant had not died, costs should be given against the estate. Benedict v. Caffe, 3 Duer, 669; id. 12 N. Y. Leg. Obs. 262. See, also, Lemen v. Wood, 16 How. 285; McCann v. Bradley, 15 id. 79. d. Omitting to advertise for the presentment of claims.-It is now settled, that the omission of the executor to publish the notice does not entitle a creditor to costs. Snyder v. Young, 4 How. 217; Van Vleck v. Burroughs, 6 Barb. 345; Bullock v. Bogardus, 1 Denio, 276; Knapp v. Curtiss, 6 Hill, 386; Harvey v. Skillman's Ex'rs, 22 Wend. 571, is overruled.

e. Construction of 2 R. S. 90, § 41. An equitable action that has never been referred does not come under that class of cases provided for by this section of the Revised Statutes. Yorks v. Peck, 9 How. 203. Laws of New York, 1859, ch. 261, p. 569, § 36: "If the executor or administrator doubt the justice of any claim so presented, he may enter into an agreement, in writing, with the claimant, to refer the matter in controversy to three disinterested persons, or to a disinterested person, to be approved by the surrogate, and upon filing such agreement

and approval of the surrogate in the office of the clerk of the supreme court in the county in which the parties, or either of them, reside, a rule shall be entered by the clerk, either in vacation or term, referring the matter in controversy to the person or persons so selected." For a construction of the above statute, see Bucklin v. Chapin, 53 Barb. 488; S. C. 35 How. 155; 1 Lans. 443.

f. Costs against executors, etc.— The sections of the statute (R. S.), prohibiting the recovery of costs in suits at law against executors and administrators, where payment has not been unreasonably refused, resisted or neglected, and where there has been no refusal to refer the claims, apply to suits commenced against such executors and administrators, and not to suits commenced against the testator or intestate in his life-time. Merritt v. Thompson, 27 N. Y. (13 Smith), 225, 234; S. C. 25 How. 592 (n.); 9 Bosw. 558; overruling McCann v. Bradley, 15 How. 79; Lemen v. Wood, 16 id. 285; Mitchell v. Mount, 17 Abb. 213; Benedict v. Caffe, 3 Duer, 669; S. C. 12 N. Y. Leg. Obs. 262.

g. Exempt personally-estate must pay.-This section of the Code was only intended to exempt executors and administrators personally, and not to exempt the estate from costs. Murray v. Smith, 9 Bosw. 689.

h. Failure to pay over interest.-In such a case, held, that it was discretionary with the court to charge the executor with costs. Dubois v. Sands, 43 Barb. 412.

i. When costs cannot be collected personally. A judgment was obtained against an executor, his complaint being dismissed with costs: held, that as the order contained no direction that he should pay the costs personally, they must be collected from the assets in his hands. Dodge v. Crandall, 30 N. Y. (3 Tiff.), 294.

The plaintiff in an action against an executor or administrator is entitled to costs in the same manner as he would have been entitled to them in an action against the deceased in his life-time; and the judgment should in all such cases direct that the costs recovered shall be collected out of, or charged upon, the estate or assets in the hands of the executor or administrator. But if the defendant has been guilty of mismanagement or bad faith in the defense, the court may direct the costs to be paid by the defendant personally; but this cannot be done where the defendant is exempt

by the provisions of the Revised Statutes. Fish v. Crane, 9 Abb. N. S. 252. See 2 R. S. 90, § 41.

Costs are not recoverable, as a matter of course, against an executor or administrator, to be levied of the assets of the deceased. Section 317 of the Code must be considered

in connection with section 41 of the Revised Statutes (2 R. S. 90), which restricts its application only to cases where an executor or administrator is a plaintiff and fails to recover in the action. Howe v. Lloyd, 2 Lans. 335 S. C. 9 Abb. N. S. 257.

a. Assignees, trustees, and rẹceivers.-These parties are, in a certain sense, the officers of the court who come within the same protection, and are entitled to the same indulgence, as an executor or administrator prosecuting on behalf of an estate. St. John v. Denison, 9 How. 343.

b. Action on behalf of bank, by officer. The president of a bank brought an action in his own name in behalf of his bank held, that he was not the trustee of an express trust within this section. Lowerre v. Vail, 5 Abb. 229.

c. Laws of New York, 1858, ch. 314, § 3.-Any indorser or other surety, and any assignee, executor, administrator or other trustee, shall be entitled to and allowed to recover from his principal or cestui que trust, all necessary and reasonable costs and expenses paid or incurred by him in good faith, as surety or trustee in the prosecution or defense in good faith, of any action by or against any assignee, executor, administrator, or other trustee as such.

d. School officers acting under their office.-No costs shall be allowed to the plaintiff where the court certifies that the defendants acted in good faith (being school officers who were prosecuted for an act performed by virtue of their office, and from which an appeal might have been taken to the State superintendent.) Laws of New York, 1847, ch. 480, § 146, are not abrogated, repealed or superseded, by § 304 or § 468 of the Code. Clarke v. Tunnicliff, 38 Ñ. Y. (11 Tiff.), 58; S. C. 5 Trans. App. 268; 4 Abb. N. S. 451, sub nom. Clark v. Tunnicliff.

e. Receiver of an insurance company. If he fails to recover, in an action to recover money to enhance the fund of which he is receiver, the defendants should have costs. Third parties should not be sued, in order to increase such fund, except at the expense and risk of the fund. The defendant having recovered in such a case, is entitled to an immediate order for the payment of his costs out of any funds in the receiver's hands. He is not to be paid pro rata with the general creditors. Where an action was begun by the company, prior to the appointment of a receiver, and he continues it, he is personally chargeable with the costs, in like manner as if he were plaintiff. Columbian Insurance Co. v. Stevens, 37 N. Y. (10 Tiff.), 536; S. C. 35 How. 101; 4 Abb. Ñ. S. 122; 5 Trans. App. 9.

f. Trustee, personal liability.-A party subscribed a certain sum for the benefit

of an educational corporation, and an action was commenced against him to compel its payment. The plaintiffs described themselves in the complaint as "trustees," etc. Held, that they were trustees of an express trust, under § 113 of Code, and that the costs awarded on a dismissal of the complaint could not be collected from them personally. Slocum v. Barry, 38 N. Y. (11 Tiff.), 46; S. C. 34 How. 320; 4 Abb. N. S. 399; 5 Trans App. 173.

g. Appeal in such a case.-A substantial right which has never been determined, is the subject of an appeal, and where an execution was issued for costs against plaintiffs personally, and a motion to set aside such execution was denied, held, that such an order was appealable. Ib.

h. Bad faith and mismanagement. This must be understood as relating to the action strictly, and not to conduct in the trust generally. Kimberly v. Stewart, 22 How. 281. See, also, Devendorf v. Dickinson, 21 id. 275; Kimberly v. Blackford, 22 id. 443; Kimberly v. Goodrich, id 424.

i. Example of bad faith.-In this case, a receiver having no funds in his hands to pay costs, brought an action in which judgment was recovered against him. Held, guilty of bad faith. Cumming v. Egerton, 9 Bosw. 684.

j. Reimbursement of trustee, etc. The estate can be called upon to reimburse the trustee for all just costs and expenses incurred in protecting it. Personal property should be exhausted first. Where the decree of a court of foreign jurisdiction orders costs to be paid by the trustee out of the estate of the deceased, and he has actually paid them under such decree, it is an error not to allow them to be included in an accounting. Young v. Brush, 28 N. Y. (1 Tiff.) 667; S. C. 18 Abb. 171; Rev'g S. C. 38 Barb. 294; 24 How. 70.

k. Part owner of demand, notice.It is not proper to charge a third party with costs, on the ground that he is in part owner of the demand on which the action is brought. This is the rule, unless notice has been given to him. Carnahan v. Pond, 15 Abb. 194.

1. Void trust. An action was commenced by an assignee for the benefit of creditors as such assignee. The court decided the assignment void. Held, that no exemption under this section could be claimed. Sibell v. Remsen, 30 Barb. 441; S. C. Aff'd, 29 How. 574 (n.), sub nom. Sibell v. Remson.

m. Grounds for demanding security.-An assignee brought an action to obtain