
    Charles A. Pauley, Respondent, v. Julia D. Millspaugh and Charles H. Millspaugh, as Executors, etc., of John H. Millspaugh, Deceased, Appellants.
    
      Costs amarded against executors, where payment of a claim was unreasonably resisted, although there was not a failure to file a consent that the surrogate determine the claim—-when costs may not be awarded for a failure to file the consent — certificate in the conjunctive form.
    
    The provisions of section 1836 of the Code of Civil Procedure, which provides that in an action brought to recover upon a claim against a decedent’s estate, costs may be awarded against the executor or administrator, to be collected either out of his individual property or out of the property of the decedent, (1) where payment of the claim was unreasonably resisted or neglected, or (2) where the defendant did not file a consent that the claim should be determined by the surrogate upon the judicial settlement of the defendant’s accounts within “at least ten days before the expiration of six months from the rejection thereof,” are alternative, and an award of costs against the defendant may be made in either case specified.
    An award of costs cannot be sustained in consequence of the failure to file the consent mentioned, where it appears that the action was brought prior to the expiration of five months and twenty days from the rejection of the claim and consequently during the period in which the defendant could have-filed the consent.
    A certificate of the trial judge, made under section 1836 of the Code of Civil Procedure, reciting that “the payment thereof was unreasonably resisted and neglected; and that the defendants did not file the consent,” is not defective in form.
    Appeal by the defendants, Julia D. Millspaugh and another, as executors, etc., of John H. Millspaugh, deceased, from an order of the Supreme Court, made at the Orange Trial Term and entered in the office of the clerk of the county of Orange on the 29th day of January, 1904, allowing costs and disbursements, including an extra allowance, in favor of the plaintiff, to be collected out of the property of the decedent.
    Section 1836 of the Code of Civil Procedure, which is cited in the opinion, provides as follows : “ Where it appears in a case specified in the last section that the plaintiff’s demand was presented within the time limited by a notice püblished as prescribed by law, requiring creditors to present their claims and that the payment thereof was unreasonably resisted or neglected, or that the defendant did not file the consent provided in section eighteen hundred and twenty-two at least ten days before the expiration of six months- from the rejection thereof the court may award costs against the executor or administrator to be collected either out of his individual property or out of the property of the decedent as the court directs, having reference to the facts which appear upon the trial. Where the action is brought in the Supreme Court, the facts must be certified by the judge or referee before whom the trial took place.”
    
      George H. Decker, for the appellants.
    
      John C. R. Taylor, for the respondent.
   Jenks, J.:

The defendants appeal from an order made at Trial Term charging costs, disbursements and an allowance against the property of their testator. The motion was made after the trial of the issues, and the record contains affidavits of the respective attorneys which were read on the motion. The learned justice who presided at the trial and who granted the motion certifies that the payment of the claim in suit was unreasonably resisted and neglected, and that the defendants did not file the consent provided for by section 1822 of the Code of Civil Procedure. There is no pretense that the defendants ever filed the consent provided for in the said section,- but the learned counsel for the appellants contends that the allowance could not have been justified under section 1836 of the Code of Civil Procedure upon the ground of such omission, for the reason that the plaintiff’s claim, which was rejected on January 27, 1903, was put in suit in May of that year, and, consequently, before the expiry of five months and twenty days from January 27, 1903. I think that this court is committed to this view by its judgment in Ballantyne v. Steenwerth (79 App. Div. 632), which followed Hart v. Hart (45 id. 280). But in Ballantyne’s Case (supra) we also necessarily decided that the provisions of section 1836 of the Code of Civil Procedure are alternative, i. <?., that the award of costs could be based upon (1) unreasonable resistance or neglect, or (2) the failure to file the consent provided for in section 1822. 'And in Benjamin v. Ver Nooy (168 N. Y. 578, 582) the court say : “Upon the recovery of judgment for a sum of money only against an executor, as such, costs cannot be awarded against him unless the demand of the plaintiff was properly presented and payment thereof was unreasonably resisted or neglected, or unless the executor did not consent to refer according to law. (§§ 1822, 1835, 1836 and 3246.) The general rule exempts an executor from the payment of costs, but when a case falls under either of the two exceptions, the court may award costs against him.”

The proceedings at the trial are not detailed in the record, but it. appears therein that the complaint was upon a promissory note,, made by Samuel W. Millspaugh and indorsed before delivery to plaintiff by the decedent, which was duly presented for payment to Samuel W. Millspaugh, but was not paid, and that- the decedent thereafter formally waived protest and agreed to pay the note. The defendants admit their capacity, but otherwise make 'general denial. The record shows that only the plaintiff and Samuel W. Millspaugh testified for the plaintiff, and that the defendants offered no evidence. The affidavit of the plaintiff’s attorney shows that, the sole question litigated was whether or riot the defendants’’ testator had waived protest, and that this fact and,' consequently, plaintiff’s cause of action was established by Samuel W. Millspaugh (a. son of the decedent, John H. Millspaugh, and also the father of the executor and the brother of the executrix), whose testimony was not disputed, and whose whereabouts, were at all times known to the defendants. I think that we should not disturb the determination of the learned trial justice that the payment was unreasonably resisted arid neglected..

There is no force in ■ the criticism- that the certificate of the justice reads “ the payment thereof Was unreasonably resisted and neglected; and that the defendants did not file the consent.” Section 1836 of the Code of Civil Procedure is alternative, and the conjunctive form of the certificate is but the natural method of statement of two alleged separate derelictions of the defendants. If the learned court had used or ” instead of and ” there would thereupon arise a doubt as to which dereliction he intended to certify, and there would not be certainty as to either’ one. of them.

The order should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
       Code Civ. Proc.— [Rep.
     