
    Ira M. Ackley, Ex'r, App'lt, v. John Ackley, Resp't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    
      1. Executors and administrators—Action to recover assets—Evidence.
    Plaintiff, as executor, brought an action to recover the value of a span of horses, contending that they belonged to his testator at the time of his death ; that he found them in defendant’s possession, demanded them, and was refused. The defense was that testator had sold the span to A., of whom defendant had hired them, and the latter relied to establish A.’s title upon the declarations of testator that he had sold them to A. Held, that such evidence was competent.
    2. Same—Costs.
    In such case, plaintiff’s complaint being dismissed, it was proper to charge him personally with the costs, as the cause of action, if any, arose after testator’s death, and the action could have been maintained in plaintiff’s individual name.
    Appeal from a judgment entered in the clerk’s office of Cattaraugus county upon a referee’s report dismissing the plaintiff’s •complaint and awarding costs against the plaintiff personally.
    
      W. iS. Thrasher, for ajpp’lt;
    
      William Woodbury, for resp’t.
   Lewis, J.

This litigation is about the ownership and right of possession of a span of horses. The plaintiff contends that the horses were the property of the testator, Ira W. Ackley, at the time of his death, and thereby became a part of the assets of the estate. That he, as the duly appointed and qualified executor of the estate, found the horses in defendant’s possession. That he demanded possession of them, which was refused, and that thereupon as such executor he brought this action to recover their value of the defendant.

The defendant answered admitting that the testator was once the ■owner of the horses, but alleged that during his lifetime he sold and delivered them to one Anson Alverson, that Alverson was the owner of them at the time of the testator’s death, and that at the time the plaintiff demanded them the defendant was rightfully in possession of the horses under Alverson. The action was referred and tried and the referee dismissed the plaintiff’s complaint and charged the defendant personally with the costs of the action. The defendant relied to establish Alverson’s title upon the declarations of the deceased that he had sold the horses to Alverson and had received his pay for them. This evidence was objected to by the plaintiff as incompetent. It was unquestionably competent evidence ag£T"st the plaintiff, occupying, as he did, the position of a representative of the estate.

The appellant contends that the referee erred in charging him personally with costs of the action. The alleged cause of action occurred after the death of the testator, and at a time when the plaintiff was acting as the executor of the estate. It is so alleged in the complaint. Mo cause of action existed in the testator’s lifetime; at the death of the testator the personal property vested in his executor.

The cause of action arose when the defendant refused to surrender the property on demand.

The action could, therefore, have been maintained in the plaintiff’s individual name. In such a case it is proper to charge the plaintiff personally with costs. Lyon v. Marshall, 11 Barb., 248; Ketchum v. Ketchum, 4 Cow., 87; The People v. Judges, 9 Wend., 486.

The findings of the referee are fully sustained by the evidence.

The judgment appealed from should be affirmed, with costs of the appeal against the plaintiff personally.

Dwight, P. J., and Macomber, J., concur.  