
    FISH against CRANE.
    
      Supreme Court, Fourth District; General Term,
    
    October, 1869.
    Costs against Executors.
    Un er the Code of Procedure,—which changes the rule prescribed by the Revised Statutes (Code of Pro., § 317 ; 2 Mem. Stat., 90, § 41), —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 lifetime; and the judgment should, in all cases, direct that the costs recovered shall be collected out of, or charged upon, the estate or assets in the hands of the representative, unless the court should adjudge them to be chargeable personally, on account of mismanagement or bad faith. 
    
    An order of the special term, in an action against executors or administrators, granting costs upon a recovery against them, which does not direct the costs to be paid by the representative personally, has the effect only of charging the costs upon the estate in the hands of the representative; and it seems, that no motion is necessary for this purpose as to the costs, although such a motion is necessary in respect to an extra allowance.
    Appeal from an order.
    This action was brought by Samuel N. Pish against Amos L. Crane, executor, and Mary Brooks, executrix of Cooper Brooks, deceased. It appeared that the executor and executrix had advertised for claims under the statute, and that Pish, having a claim for thirty-six hundred dollars for services against the estate represented by defendants, presented it during the pendency of the publication of notice for presentment of claims, and his claim was immediately and totally rejected.
    A suit having been instituted by him, and vigorously defended by the executors, he recovered nineteen hundred and twenty-four dollars.
    A motion for costs and extra allowance was made by him, and heard before Mr. Justice James, at special term, August 4, 1869, who granted both, on authority of Port v. brooding (9 Barb., 388).
    The defendants appealed from this order.
    
      H. L. Knowles, for appellants.
    I. The statute proMbits a recovery against executors, unless the payment of the claim was unreasonably resisted or neglected, or the defendants refused to refer the claim (2 Rev. Stat., p. 90, § 41).
    II. Payment was not unreasonably resisted or neglected. (a.) The defendants are trustees of a fund to be guarded for, and distributed to creditors, and resistance is not unreasonable if in good faith (Robert v. Ditmas, 7 Wend., 522-5; Buckhout v. Hunt, 16 How. Pr., 407; Nicholson v. Showerman, 6 Wend., 554; Swift v. Blair, 12 Id., 278; Stephenson v. Clark, 12 How. Pr., 282). (5.) Resistance can never be deemed unreasonable if it results in materially reducing the demand (Robert v. Ditmas, ubi sup.; Carhart v. Blaisdell, 18 Wend., 531; Comstock v. Olmstead, 6 How. Pr., 77; McCann v. Bradley, 15 Id., 79; Buckhout v. Hunt, ubi sup.).
    
    III. Rejection of the account is not a refusal to refer (2 Rev. Stat, p. 89, § 38; Stephenson v. Clark, 12 How. Pr., 282; Proude v. Whiton, 15 Id., 304; affirmed at Monroe general term; Buckhout v. Hunt, ubi sup.; Swift v. Blair, 12 Wend., 278, per Savage, J.; McCann v. Bradley, 15 How. Pr., 79, N. Y. general term).
    
      L. W. Russell, for respondent.
    I. The unqualified rejection of plaintiff’s claim, unaccompanied by an offer to refer, was equivalent to a refusal to refer. The defendants having taken upon themselves the responsibility of peremptorily rejecting the claim, it became their duty to offer to refer, and, standing silent, they put • plaintiff to Ms legal remedy (Fort v. Gooding, 9 Barb., 388; approved in Niblo v. Binsse, 31 How. Pr., 476).
    II. The exemption from liability for costs, so far as the estate is concerned, afforded by the Revised Statutes, is repealed by section 317 of the Code, (a.) A distinction is made by the statute between awarding costs against the executors and administrators personally, and against the estate represented (3 Rev. Stat., 5 ed., 176). (5.) The Code puts all representative persons on the same footing as to costs, awarding them in all cases, but not charging such parties personally, except for bad faith or mismanagement. It, however, examples “executors and administrators,” even in the cases where they are exempted by the Revised Statutes. By the rule expressio unius est exclusio alterius, this exemption is only personal, and does not exempt the estate represented (Murray v. Smith, 9 Bosw., 689).
    
      
      Present, Ingraham, P. J., and G. G. Barnard and Cardozo, JJ.
    
    
      
      We understand that the court of appeals have recently decided ip Morgan». Skidmore (not yet reported), that section 317 of the Code of Procedure does not allow costs against executors and administrators when they are exempted therefrom by the Revised Statutes. And that this provision is not confined to costs to be paid by the executors personally, but is general. Compare, also, Howe v. Lloyd, Post, 257; and Smith v. Patten, Ante, 205.
    
   Br the Court.—Rosekrans, J.

The Code of Procedure (§ 317) has changed the law in relation to costs in actions prosecuted or defended by an executor or administrator. By the Revised Statutes (vol. 2, p. 90, § 41), no costs could be recovered in an action against an executor or administrator to be levied of his property, or of the property of the deceased, unless it should appear that the demand on which the action was founded, was presented within the time mentioned in the notice required to be published for the presentation of claims against the estate, and its payment was unreasonably resisted or neglected, or that the defendant refused to refer the same pursuant to the provisions of the statute. If it did not so appear, the court was authorized to direct the costs to be levied of the property of the defendants or of the deceased, as should be just, having reference to the facts which appeared on the trial.

The section of the Code referred to, declares, that in an action prosecuted or defended by an executor or administrator, trustee of an express trust, or person specially authorized by statute—costs shall be recovered as in an action by and against a person prosecuting or defending in his own right, but such costs shall only chargeable upon, or collected of, the estate or fund, or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defense; so that by the law as it now stands, 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 lifetime; 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 executors or administrators. If the court should adjudge that the executor or administrator had been guilty of mismanagement or bad faith in the defense, it may direct the costs to be paid by the defendant, personally, but it cannot allow costs against executors or administrators, personally, where they are exempted by the provisions of the Revised Statutes, referred to above.

In this case, the order of special term appealed from, does not direct that the costs allowed should be paid by the defendants personally, and they are chargeable only under section 317 of the Code, upon the estate in his hands. For this purpose, no motion was necessary. The plaintiff had the right to insert them in his judgment, as in an action against the defendant, and defended by him in his own right, making them chargeable upon, and to be collected out of the estate or assets in the defendants’ hands.

For the extra allowance, the motion was necessary.,

The defendant has no reason to complain of the judgment, unless the court has erroneously charged him personally with the costs. As this has not been done, the order appealed from should be affirmed with costs.

Potter and Bocees, JJ., concurred.

Order affirmed with costs. 
      
      Present, Rosekrans, Potter and Bockes, JJ.
     