
    John B. Hopkins, Jr., App’lt, v. Franklin J. Lott, Adm’r, etc., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed December 18, 1888.)
    
    1. Costs—When allowed against an executor—Code Civ. Pro., §§ 3228, 1835 and 1836.
    The general right of a plaintiff to costs on the recovery of a judgment in his favor in an action against an executor or administrator given hy Code of Civil Procedure, § 3228, is qualified by sections 1835 and 1836, which prohibits an allowance of costs against an executor or administrator upon the recovery of a money judgment by the plaintiff against such executor or administrator, unless the claim against the estate was duly presented, or the payment thereof unreasonably resisted, or the defendant refused to refer, as prescribed hy law, either of which conditions existing the court may, in its discretion, adjudicate costs in favor of the plaintiff.
    2. Same—Right of executor or administrator to costs—Governed by Code Crv. Pro., 3229.
    The right of an executor or administrator to costs depends wholly upon the language of Code of Civil Procedure, § 3229, and where a plaintiff recovers against an executor or administrator on a legal cause of action, costs cannot he awarded to the defendant, although under sections 1835- and 1836 they are denied to the plaintiff.
    8. Same—General rule governing an allowance of costs—Code Civ. Pro . §§ 3228 and 3229.
    The general rule governing the allowance of costs in actions other than those where costs are in the discretion of the court, is prescribed in sections 3328 and 3229 of the Code of Civil Procedure.
    4. Same—When not discretionary under Code Civ. Pro.", § 3240.
    When the payment of the claim against the executor was not unreason1 ably resisted, and it was referred by the agreement of both parties under the statutes Held, that the allowance of costs to the defendant was not discretionary under Code of Civil Procedure, § 3240.
    5. Same—How collectible—Code Civ. Pito., § 3246.
    Code of Civil Procedure, § 3246, regulates the manner of awarding and collecting costs in an action, by or against an executor or administrator, where costs are adjudged in favor of the other party.
    6. Same—Order allowing costs appealable—Code Civ. Pro., § 191, SUED. 3.
    An order awarding costs or disbursements with an extra allowance, is appealable under Code of Civil Procedure, § 191, subd. 3.
    Appeal from an order of the supreme court, general term, second department, affirming an order of the Kings county special term confirming the report of a referee, and awarding defendant extra allowance and costs and disbursements.
    
      Henry A. Monfort, for app’lt; Joseph M. Pray, for resp’t.
    
      
       Reversing 6 N. Y. S. Rep., 12.
    
   Andrews, J.

We think costs were erroneously awarded to the defendant. The Revised Statutes, under which the reference was had, provide that the “court may adjudge costs as in actions against executors ” 2 R. S., 89, § 37.

The general rule governing the allowance of costs in actions other than those where costs are in the discretion of the court, is prescribed in sections 3228 and 3229 of the Code of Civil Procedure.

By section 3228 the plaintiff, among other cases mentioned, is entitled to costs, as of course upon a recovery of a final judgment in his favor in an action specified in the fifth subdivision of section 2863, viz., an action against an executor or administrator.

By section 3229 the defendant is entitled to costs, of course, upon the rendering of a final judgment in an action specified in section 3328, “unless the plaintiff is entitled to costs as therein prescribed.” If, therefore, an action had been brought in the supreme court to enforce the claim which was the subject of the reference, against the administrator, with the same result, the plaintiff would have been entitled to costs under section 3228, according to the general rule therein prescribed, although the recovery was nominal, because the action could not have been brought in justices’ court, and the limitation in that section, based on the amount of the recovery, not being applicable to such a cause of action. The defendant in the case supposed would not be entitled to costs under section 3229, because it was an action in which, by section 3228, “the plaintiff is entitled to costs.” But the general right of a plaintiff to costs on the recovery of a judgment in his favor, in an action against an executor or administrator, given by section 3228, is qualified by sections 1835 and 1836, which prohibit an allowance of costs against an executor or administrator upon the recovery of a money judgment by the plaintiff against such executor or administrator, unless the claim against the estate was duly presented, or the payment thereof was unreasonably resisted or neglected, or the defendant refused to refer as prescribed by law, either of which conditions existing, the court may, in its discretion, adjudge costs in favor of the plaintiff. The plaintiff was properly denied costs because the payment of the claim was not unreasonably resisted, and it. was referred by the agreement of both parties under the statute.

The plaintiff’s cause of action was maintained by the judgment entered on the report of the referee, hut his"damages for the eviction, as determined, were nominal merely, and judgment was awarded in his favor for six cents only. But the right of the defendant to costs does not follow, because they were not awarded to the plaintiff under the special provisions of sections 1835 and 1836.

These sections do not authorize costs to be awarded - to the executor or administrator on a recovery by the other party, although costs may not be awarded to him. *

The right to recover costs in an action is statutory. By section 3229 costs are given to a defendant in the actions' specified in section 3228, “unless the plaintiff is entitled to costs as therein specified,” and in no other cases,and section 3228 does specify that the plaintiff is entitled to costs on a remedy in an action against an executor or administrator. By sections 1835 and 1836 the right of the plaintiff to costs is made contingent, and not absolute. But the right of the executor or administrator to costs depends wholly on the language of section 3229, and where the plaintiff recovers against the executor or administrator on a legal cause of action, costs cannot be awarded to the defendant, althougunder sections 1835 and 1836 they are denied to the plaintiff. See Baine v. City of Rochester, 85 N. Y., 523.

Nor was the allowance of costs to the defendant discretionary under section 3240 of the Code. The costs are regulated by the Revised Statutes and the Code, as in actions against executors and administrators. Section 3246 regulates the manner of awarding and collecting costs in an action by or against an executor or administrator, where costs are adjudged in favor of the other party, but it does not bear upon the present question.

The order awarding costs and disbursements, with an extra allowance to the defendant, should therefore be reversed. The order is appealable under subdivision 3, section 191, of the Code. The question whether the plaintiff was entitled to recover his disbursements is not presented by this record.

The orders of the special and general terms awarding costs to the defendant are reversed, with costs of both appeals to the appellant.

All concur.  