
    TINDAL a. JONES.
    
      Supreme Court, Second District;
    
    
      General Term, May, 1860.
    Costs.—Executors and Administrators.
    Where executors or administrators are substituted for a deceased defendant in a pending action, they are not entitled to presentation of the demand, under the provisions of 2 Revised Statutes, 88-90,—relating to referring claims against estates of deceased persons,—and section 41 of that statute does not prevent plaintiff from recovering costs against them if he continues the action and recovers judgment.
    Special application to the court for leave to enter judgment in such case is not necessary.
    Appeal from an order denying motion to set aside judgment.
    The action was originally commenced against the defendant intestate to recover an indebtedness on contract. After issue joined, the original defendant died, and the present defendant was appointed his administratrix. Plaintiff, instead of presenting his claim to the administratrix, applied for and obtained leave to continue the action against her by supplemental complaint. He proceeded therein to judgment. On entering judgment, the clerk, against defendant’s objection, allowed him costs, and taxed the same.
    At special term defendant’s motion to set aside the judgment was denied, and she appealed.
    
      William Skinner and R. Cockran, for the appellant.
    
      Mr. Larkin, for the respondent.
   By the Court.*—Emott, J.

There have been various and contradictory decisions upon the question presented by this appeal. In McCann a. Bradley (15 How. Pr., 79), the general term in the first district held that an action commenced against a defendant in his lifetime, and revived against his personal representatives after his death, was within section 41, of title 3, chapter 6, part 2 of the Revised Statutes (2 Rev. Stat., 90, § 41); and costs could not be recovered unless the claim had been presented to the personal representatives, or a reference refused, which is in effect to say that in such an action they could not be recovered at all. In Haight a. Hayt, which is not reported on this point, the general term in this district had previously made the same ruling. This case went to the Court of Appeals, but it was upon the merits, and by an appeal by the defendants, and the question of the plaintiffs’ right to costs was not presented to that court. The plaintiffs, however, were allowed their costs of both the appeals in the same action,—that from the circuit to the general term, and that from this court to the Court of Appeals. This was understood to have been permitted upon the ground that an appeal was in the nature of a new action, and that the executors, having appealed from the judgment against them, ceased to be defendants, or persons against whom an action was brought, in the sense of the statute.* On the other hand, the general term of the sixth district, in Lemen a. Wood (16 How. Pr., 285); and the full bench of the Superior Court, in Benedict a. Caffe (3 Duer, 669), took a directly opposite view of the question. In the latter case, in particular, Mr. Justice Slosson discusses the question at large in a well-considered opinion. In this state of the authorities we feel at liberty to treat the question as open, and to reconsider the decision in this district, especially as it has never been reported, and is sustained by no opinion.

The provisions of the Revised Statutes form a system which is complete in itself in regard to the settlement of estates, and the collection of demands against them. The section in question is part of that system, and is intended to give to executors and administrators notice of a demand made upon them, and an opportunity to admit it and agree to its payment in the course of administration, or to try its validity in a cheap and easy mode, if it depend altogether upon questions of fact; but in cases like the present, the intestate has in his.lifetime the opportunity to elect whether he would pay or resist the claim. He elects to defend, puts the party making the claim to a suit, and may put him to the trouble and expense of a litigation in all stages, perhaps including several trials, down to its final result. He dies, it maybe, just before that result is reached, and the effect is said to be that the plaintiff must lose his right to the costs already incurred, and go on at his own expense for all the proceedings in the suit, past and to come; or relinquish his proceedings, pay his costs already incurred, and then exhibit his claim, like every other creditor, de novo under the statute. That might be the case if the suit finally abated, and could not be revived, although even then it would be highly unjust. But since the action does not abate, but is continued, it is not easy to see how the plaintiff is to be deprived by the change of parties of his right to costs, which are one of the incidents of the suit, and depend upon no other contingency than final success. I exclude of course from this remark the effect of the action of the Legislature while the suit is pending. The effect of the death of the original defendant, the partial abatement in consequence, and subsequent revivor of the action, is only to substitute new parties. The personal representatives are put in the place of the deceased, just as the assignors of a bankrupt are substituted for him. The interest is changed, but the cause of action and the action itself survive. There is no abatement in strictness and reality, but merely a temporary defect of parties in consequence of the death of the defendant and the transmission of his interest. In analogous cases in the former practice of the Court of Chancery, the action was not so suspended, even before it had been revived against the personal representatives, but that some proceedings could be had in the mean time, as a motion to dismiss for want of prosecution, or an application for a receiver and the like. The representatives of a deceased defendant come into his shoes in all respects. They become defendants to a suit against him, not an action which has been brought against them; and the action must proceed against them as it would have done against him. If, in the final event, it turns out that the plaintiff recovers a judgment, which would entitle him to costs had the original defendant survived, he has the same right against his legal representatives and successors, and section 317 of the Code directs how that judgment shall be entered and enforced.

Nor is it necessary to make an application to the court for leave to enter a judgment for the costs in such a case. Such an application is only necessary when the award or refusal of costs rests in the power or discretion of the court, or at least depends upon something else than a positive direction of statute. In cases where the action is brought against executors or administrators, no costs are recoverable unless the plaintiff has, before bringing the action, complied with the conditions of the statute, and this must be shown to the court outside the record; but when the administrator is substituted for the deceased in a pending, action, as in this case, the court would have had no more to pass upon in such an application than if a similar application were made in the case of a living defendant.

The plaintiff’s judgment was regular, and the order refusing to set it aside must be affirmed, but considering the conflicting character of the decisions, without costs.

Brown, J.—Dissented. 
      
       Present, Emott, Lott, and Brown, JJ.
     
      
       As to this view of an appeal, consult Enos a. Thomas (5 How. Pr., 359); Johnson a. Yeomans (8 Ib., 140); Seely a. Pritchard (12 N. Y. Leg. Obs., 245); Gormly a. McIntosh (22 Barb., 271); Harriott a. New Jersey Railroad Co. (8 Abbotts’ Pr., 284) ; D’Ivernois a. Leavitt (Ib., 59); and see People a. Judges of Suffolk (24 Wend., 249).
     