
    The Ladies’ Union Benevolent Society, Respondent, v. John E. Van Natta, as Sole Surviving Executor, etc., of Dwight McIntyre, Deceased, Appellant.
    
      Costs—when a defendant executor who succeeds in cm action at law is entitled to them as a matter of right.
    
    An action brought under section 1819 of the Code of Civil Procedure against an executor to recover two general legacies of §1,000 each bequeathed by the will, in which action the complaint demands judgment for §2,000, with interest and costs, which is defended by the executor on the ground that the legacies were revoked by a codicil to the will, is an action at laW, and if it is decided in favor of the defendant, the latter is entitled to costs under section 3229 as a matter of right.
    Appeal by the defendant, John E. Van Natta, as sole surviving executor, etc., of Dwight McIntyre, deceased, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Tompkins on the 3d day of March, 1904,. denying the defendant’s motion for a taxation of his costs and affirming a decision of the clerk of Tompkins county x refusing to tax such costs.
    
      Myron N. Tompkins, for the appellant.
    
      E. H. Bostwick, for the respondent.
   Chase, J.:

This action was brought under section 1819 of the Code of Civil Procedure to obtain judgment for the amount of two general legacies of $1,000 each. The demand for judgment in the complaint is as follows: “Wherefore, plaintiff demands judgment against the defendant for the sum of two thousand dollars, with interest thereon from the 14th day of November, 1894, besides the costs of this action.”

The defendant answered, and on the trial the principal contention of the defendant was that the legacies had been revoked by a codicil attached to the original will of the testator. The court decided in favor of the defendant and dismissed the complaint without awarding costs to either party or giving any direction in regard thereto. • • The defendant, after due notice to the plaintiff, presented to the clerk of Tompkins county a statement of his costs for taxation, and said clerk decided that the defendant was not entitled to costs. A motion was then made at Special Term for an order directing said clerk to tax the defendant’s costs, which motion was denied.

This is not an action in which it was necessary for the executor to account. The legacies were general legacies for specific amounts. In such an action where the complaint demands judgment for a sum of money, the existence, sufficiency or want of assets shall not be pleaded by either party, and the plaintiff’s right of recovery is not affected thereby except with respect to the costs to be awarded as prescribed by law. (Code Civ. Proc. § 1824.)

It is not an action to construe the- testator’s will, although a construction of the will including the codicil was necessary in determining whether the legacies had been revoked. The construction of thet will was incidental to the action for a money judgment in the . samé way that it is frequently necessary to construe a contract in an action at law thereon.

On the facts in this case the action was one at law (Matter of Egan, 89 App. Div. 565) where the costs are fixed by statute. By section 3228 of the Code of Civil Procedure a plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favor in the actions specified in the first three subdivisions of said section, and subdivision 4 of said section then provides for costs in “ an action, other than one of those specified in the foregoing subdivisions of this section, in which the complaint demands judgment for a sum of money only. But the plaintiff is not entitled to costs under this subdivision, unless he recovers the sum of fifty dollars or more.”

In Murtha v. Curley (92 N. Y. 359) the Court of Appeals, referring to subdivision 4 of said section 3228, says: “Under this subdivision it does not matter whether the action be legal or equitable, the sole condition being that the judgment demanded must be for money only.”

The defendant is entitled to costs, of course, upon the rendering of a final judgment, in an action specified in the last section, unless the plaintiff is entitled to costs, as therein pi'escribed. (Code Civ. Proc. § 3229.)

Milliman in his book on the Law of Costs (at p. 7) says: “ All costs in equity actions, except an action- in which the complaint demands judgment for a sum of money only, are in the discretion oE the court. Under subdivision 4 of § 3228 of the Code of Civil Procedure, costs are granted as a matter of right to the plaintiff if he succeeds in an action wherein the complaint demands judgment for a sum of money only. Section 3229 gives costs as a matter of right to the defendant in such an action in case he succeeds. It makes no difference whether the action be legal or equitable.” (See Baylies Tr. Pr. [2d ed.] 489.)

The clerk should have taxed the defendant’s costs. The order denying the defendant’s motion should be reversed, with ten dollars costs and disbursements, and the defendant’s motion should be granted, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and the defendant’s motion granted, with ten dollars costs.  