
    Supplee v. Sayre.
    
      (Supreme Court, General Term, Fifth Department.
    
    January 11,1889.)
    Executors and Administrators—Costs—Personal Liability.
    In an action for the amount of a judgment rendered against plaintiff as surety for defendant’s intestate, for a claim not presented to defendant within the time required by the notice to creditors given under 3 Rev. St. IT. Y. (7th Ed.) p. 2299, § 34, the action in which the judgment was rendered not having been commenced until after publication of the notice, costs are not recoverable against the defendant personally, the case being governed by Code Civil Proe. §§ 1833, 1836, which provide, that costs shall not be given upon the recovery of a purely money judgment against an administrator, unless the claim has been presented as required by said section 34; and Code Civil Proc. § 3246, which authorizes costs against the administrator as such, in all cases except those mentioned in sections 1835, 1836, unless by the misconduct of the administrator he is required to pay them personally; and section 1916, providing that a surety may recover of his principal costs necessarily incuimed in the defense of an action for the secured demand, do not apply.
    Appeal from special term, Monroe county.
    Action by Daniel Supplee against Joab Sayre, administrator of the estate of William H. Sayre, deceased, to recover the amount of a judgment rendered against the plaintiff as surety on the bond of said intestate, who was in his life-time administrator of Henry Sayre, deceased. The action was brought against Supplee after the administrator had published notice to creditors, as required by statute, and the claim was never presented to defendant until the time specified in the notice had expired. It was afterwards presented, and defendant refused to refer it, and thereupon this action was instituted. Judgment for the debt and costs was rendered, charging the latter on the defendant personally, and he appeals. Rev. St. PC. Y. c. 6, art. 2, § 34, is 3 Rev. St. ÍT. Y. (7th Ed.) p. 2299, § 34, and is sufficiently set forth in the opinion. Code Civil Proc. §§ 1835, 1836, provides that upon a judgment against an executor or administrator for money only no costs shall be allowed unless-after the administrator has given the notice prescribed by law the creditor shall present the claim within the time fixed by the notice, and payment shall be unreasonably resisted or neglected, or the defendant shall refuse to refer the claim as provided bylaw. Section 3246 gives costs against an administrator as such, excepting in eases falling under §§ 1835, 1836, unless the court shall for misconduct of the administrator require him to pay them. Section 1916 provides that a surety may recover of his principal costs necessarily incurred in good faith in the prosecution or defense of an action relating to the demand secured.
    Argued before Barker, P. J., and Haight, Bradley, and Dwight, JJ.
    
      John J. Van Allen, for appellant. Charles R. King, for respondent.
   Barker, P. J.

The order allowing the plaintiff costs should be reversed on the authority of the .reported cases, for the reason that the plaintiff did not-present his claim to the administrator within the time limited by the notice published by him in pursuance of section 34, c. 6, art. 2, Rev. St. Bradley v. Burwell, 3 Denio, 261; Horton v. Brown, 29 Hun, 654; Clarkson v. Root, 18 Abb. N. C.462; Bullock v. Bogardus, 1 Denio, 277. These cases hold that it is one of the prerequisites required by the statute that the creditor must present his claim within the time limited by law to entitle Mm to costs. Horton v. Brown, supra, is a recent case, and determines that sections 1835 and 1836 are only re-enactments of the provisions of the Revised Statutes on the same subject, and do not change the rule in relation to costs in actions against executors and administrators. After the publication of the notice by this defendant for the creditors of William H. Sayre to present their claims to him, the plaintiff was sued as one of the sureties on the bond of the said Sayre, and a judgment against him recovered from the moneys remaining in his hands as administrator of Henry Sayre, which he paid, and this action is founded on such payment, to recover from the defendant, as administrator of said William H. Sayre, the sum so paid. These facts present a case precisely like the case of Bradley v. Burwell, supra, and it was there held that the claim must be presented to the administrator as required by the notice when the same is published in pursuance of the provisions of the statute, although the right of action might never exist in favor of the surety against any one; that the statute was so broad in its terms that a construction could not be given to it; that it was unnecessary to present the claim within the time limited by the motion in order to secure costs, in case it became necessary to bring an action thereon, and the same should be unnecessarily resisted by the administrator, or he should refuse to refer the same under the provisions of the statute.

The plaintiff also insists that his demand for costs should be determined by the provisions of section 3246 of the Code of Civil Procedure, and that the provisions of sections 1835 and 1836 are not applicable to this ease. The last-named sections apply to actions at law, where a judgment for a sum of money only is rendered against an executor or administrator. The provision of the Revised Statutes for which these sections are a substitute, without any change in their legal effect, was that no costs should be recovered against an executor or administrator, “in any suit at law,” unless the payment of the claim was unreasonably resisted or neglected, or the defendant refused to refer. Section 3246 provides for the allowance of costs in actions by or against executors or administrators, the same as if they were prosecuted or defended by individuals in their own right,except in the class of cases mentioned in sections 1835 and 1836. In equity actions, as distinguished from actions at law, costs are within the discretion of the court, and section 3246 applies to the former class of actions, and sections 1835 and 1836 apply to the latter. This action is one at law, and the judgment directed to be entered in the plaintiff’s favor upon the report of the referee is for a sum of money only. The complaint demands judgment for a specific sum of monejr, and the costs and disbursements of the action. Ho other relief is demanded. The conclusion of law, as found by the referee, is contained in one clause of his report, and is as follows: “That the plaintiff is entitled to judgment against the defendant for the sum of $2,416.12, to be paid out of and enforced against the estate of William H. Sayre in the hands of Joab Sayre, as administrator of said estate, or which will come to his hands as such." There is no averment in the complaint, or any facts found by the referee, which would authorize the entry of judgment for a specific relief, or which would be of any benefit or advantage to the plaintiff, except a judgment for the recovery of money for the amount mentioned in the referee’s report. The action is founded on the implied promise of the deceased to indemnify and save harmless the plaintiff against all liability which he incurred as surety for the said deceased, and to refund to him all sums of money which he should pay as surety on the bond of the decedent as one of the administrators of Henry Sayre.

We have not failed to examine the point made by the respondent, that he is entitled to costs as against his principal under the provisions of section 1916 of the Code of Civil Procedure. It is manifest on reading this section that it •does not relate in any manner t<?the question whether the costs of this or any action against an executor or administrator should be charged against him personally. Order reversed, with $10 costs and disbursements. All concur.  