
    HENRY De FOREST WEEKS, as Administrator, etc., Respondent v. JOHN GARVEY, Impleaded, et al., Appellants.
    
      Judgment for costs against administrator, etc., proper entry of, upon a de cisión made by the court in an equity action brought by an administrator, dismissing the complaint with costs. Parties, representative capacity, when action must be brought in.
    
    Where in an equity action by IT. De F. W. as administrator tried by the court, the court decided that the defendant was entitled to judgment dismissing the complaint with costs, and directed judgment to be entered accordingly, the clerk is not authorized to enter a judgment adjudging that such defendant ‘ ‘ recover judgment against H. De F. W. ” for the amount of the costs; he should enter it against “ H. De F. W. as administrator, etc.,” according to his description in the pleadings. In such an action no personal judgment for costs can be entered against the plaintiff without a special direction of the court to that effect.
    The insertion in such case in the judgment as entered after the words “ H. De F. W.” of the words “ exclusively chargeable on and collectible from the estate or .funds of.....deceased,” is improper.
    Note :—See preceding case for a decision on the merits.
    
      Where an administrator, claiming a right in his intestate to be held as a quasi equitable surety, brings an action based solely on such claimed right, he must bring it in his representative capacity, and not in his individual capacity.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
    
      Decided April 15, 1889.
    Appeal by defendants from an order amending judgment.
    Statement of the Case by the Court.
    The action was in equity and the whole issue was of fact (§ 964). The decision of the court was “to direct the judgment to be entered ” (§ 1021), and the clerk was to enter judgment as directed therein (§ 1228).
    The decision of the court was “ that the defendant John Garvey, is entitled to judgment dismissing the complaint as to him, with costs, and I direct that judgment be entered accordingly.”
    The clerk, in performing his ministerial duty on ex parte application of defendant, entered a judgment adjudging that J. G. do and have and recover judgment against Henry De Forest Weeks for the amount of the costs that had been taxed.
    
      George G. Genet, attorney, and of counsel for appellants, argued:—
    It is a well settled principle of law that after an executor or administrator reduces the personal property to possession, he ceases to hold it in a representative capacity, and all actions concerning it must be brought in his name as owner, and notwithstanding he calls himself administrator, he does not sue in a representative capacity. Thompson v. Whitmarsh, 100 n. Y. 35; Buckland, as Adm’r v. Gallup, 105 n. Y. 453. Section 1814 has not changed the rule, “ The phrase representative capacity includes only those causes of action which accrued in the lifetime of the decedent.” Bingham v. Marine Bank, 41 Hun 317; Buckland v. Gallup, 105 N. Y. 457.
    The complaint alleges a cause of action that accrued wholly after plaintiff became administrator. The payment of the bond was with funds of the decedent which he had reduced to his actual possession and the mistake, if any, in paying the bond and satisfying the mortgage of record, was his mistake and not that of the decedent; therefore, he did not in any respect bring this suit in a representative capacity. In the title of the suit plaintiff describes himself as administrator. But the nature of the action is not determined by the title of the suit, but by the allegations in the body of the complaint, so that although the title showed that he sued as administrator, yet if the allegations of the complaint showed that he had no cause of action as administrator, but did show an individual cause of action, the complaint would not be dismissed, but the court would try the suit as if brought for the real cause of action, if any. Stetwell v. Carpenter, 62 N. Y. 639.
    The court below tried the case, therefore, upon the merits, and finding that plaintiff had no cause of action, dismissed the complaint as to John Garvey with costs. In such a case the proper and only judgment to be entered for the costs is a judgment against the plaintiff, he being personally liable for the costs, and if such a judgment is set aside by a judge at chambers or special term, the appellate court will reverse it. Buckland as Adm’r v. Gallup, 105 N. Y. 453.
    
      George H. Forster, attorney, and Frederick P. Forster, of counsel for respondent, argued :—
    I. The clerk had no power to enter a personal judgment against plaintiff without a direction to do so by the court, and he had no power to disregard the conclusions of law directing judgment against plaintiff as administrator. U. S. Life Ins. Co. v. Jordan, 46 Hun 201; Rosa v. Jenkins, 31 Ib. 384; Code §§ 1814, 3246 ; Woodruff v. Woodruff, 14 How. 481; Slocum v. Barry, 38 N. Y. 46 ; Marsh v. Hussey, 4 Bosw. 614 ; Cunningham v. McGregor, 12 How. 305; Stuart v. Palmer, 74 N. Y. 191; In re Ford, 6 Lans. 94; Dodge v. Crandall, 30 N. Y. 294; Lindslay v. Deafendorf, 43 How. 90; Hone v. De Peyster, 106 N. Y. 648 ; Dean v. Roseboom, 37 Hun 311.
    II. The action was not one in which if an application on notice had been made, the administrator would have been charged personally. Spencer v. Strait, 40 Hun 463 ; Hone v. De Peyster, 44 Ib. 487 ; Sherman v. Page, 21 Ib. 63-4; Hall v. Richardson, 22 Ib.. 446 ; Bucldand v. Gallup, 105 N. Y. 455; Bingham v. Marine Nat. Bank, 41 Hun 377 ; Merritt v. Seaman, 6 Barb. 330; 6 N. Y. 168; Cheney v. Beals, 47 Barb. 523 ; Eagle v. Fox, 28 Ib. 473; Bright v. Currie, 5 Sand. 433.
   By the Court.—Sedgwick, Ch. J.

Assuming, as the parties have assumed on the argument, that this was an award of costs against the plaintiff to be made out of his own property, the clerk’s action was incorrect if it be conceded that the action was brought by plaintiff in a representative capacity.

Section 3247 says that, in an action like this, costs must be awarded “ as in an action by a person prosecuting in his own right,” but they are exclusively chargeable upon and collectible from the estate fund or person represented, unless the court directs them to be paid by the party personally for mismanagement or bad faith in the prosecution of the action. There has been no direction as to plaintiff’s liability in consequence of bad faith. The court that ordered what judgment should be entered did not make such a direction. Whatever the judgment, in form, the costs could not be collected except from the estate, and I take it, the words “ as in an action by a person prosecuting in his own right,” mean, only that there shall be an absence from the award of any discrimination as to whether the person or the estate is to pay, and not that a true description of the plaintiff, as it appears on the record, shall be omitted. And therefore the clerk should have described the plaintiff as the pleadings described him, that is, as administrator, &c.

The court making the order below, had power to correct the mistake of the clerk in this respect. I think, however, that there should not have been inserted the words “exclusively chargeable upon and collectible from the estate or funds of said James Garvey, deceased.” These words to be sure, embody only a true legal consequence of the award of costs against the plaintiff as administrator, but inserting them is therefore unnecessary, and perhaps implies that there has been an adjudication that the plaintiff has been held, by the court trying the case, as not liable personally. It does not appear that the court has had the question presented.

The learned counsel for the defendant argues, that by the record it appears that the case is not within section 3246, and for the reason that on the whole record, it appears that the plaintiff did not bring the action in his representative capacity.

The court in Thompson v. Whitmarsh, 100 N. Y. on p. 40, said in considering the effect of sections 449 and 1814, that “ the effect of the section and the change produced by it, is upon the class of cases in which the action could have been maintained in either form; as where, upon a contract made with the testator, the cause of action accrued after his death; or where, upon a debt or obligation due to the deceased, the executor has taken a new security or evidence of debt. In these cases, before the code, the action might be in the individual or representative name, but now must be in the latter.” Cole v. McClellan, 4 Hill 59.

The substance of the claim, not regarding unnecessary details, is the following: The plaintiff’s intestate died, being liable to pay a certain bond made by him and secured by property owned by him at the time he made the bond. When he died, he had executed a deed conveying the property to third parties, whose representatives are the defendants to this action. This deed was not upon record at the time of his death. After his death the plaintiff, as administrator, paid the bond and mortgage and took a satisfaction piece, in ignorance that the land had been conveyed by his intestate. In this action he claims, that if the mistake were held corrected in equity, he then would have been entitled to an assignment of the mortgage, on the ground that the land was the primary fund for its payment. The ground of this claim was the right of his intestate to be held as a quasi equitable surety, and it is upon such a right only that there could be a recovery. For this reason, I am of opinion, that the plaintiff’s claim is only that of a representative.

Perhaps none of these facts existed, and perhaps the testator was not a surety. Yet, the only question here is, in whose behalf did he sue or could he have, sued in his own. This must be answered favorably to the plaintiff.

The order appealed from should be modified by strik- . ing out the words “ exclusively chargeable,” etc., and as modified affirmed, without costs.

Tbuax and Dugbo, JJ. concurred.  