
    LUCIAN R. BAILEY, Respondent, v. JOHN H. BERGEN, Executor, etc., Appellant.
    
      Costs against executor — referee cannot allow.
    
    A referee lias no power to allow costs against an executor or administrator, to be levied on bis property or on that of the deceased. Such costs can only be allowed by the court, on motion, after trial. (2 R. S., 90, § 41; Rowe v. Lloyd, 2 Lans., 835.)
    Appeal from a judgment, in favor of tbe plaintiff, entered upon the report of a referee.
    This case has already been before the General Term upon a former appeal, the decision being reported in 9 Supreme Court (2 Hun), 520.
    
      Moses Taggart, for appellant. Geo. Bowen, for respondent.
   Opinion by

Meewin, J.

Present — Smith, P. J., GilbeRT and MeewiN, JJ.

Judgment affirmed, except as to the costs, which were stricken out of the judgment without prejudice to an application by plaintiff for costs, in the manner allowed by law, without costs to either party on this appeal.  